of the asserted claims the answer to that question is no and that essentially resolves into a claim construction question these are this it could be a claim construction question although the court did not offer a construction of the critical claim term but the entire debate is about what is required this one piece of claim language i believe there's there is a way as you describe it the  requirement issue to meet the claim language contains a legal claim construction element and a fact question of what a procedure would see when they compare the coin language to the subject of ice this case can be decided this issue in this case can be decided reading the first column and a half of the patent there's two types of prior are buffers that are referenced the first is adrian smith being a buffer that's expressly described as a buffer that stores such that if there's a transmission error the buffer doesn't have to go back to the host to read download the data and start all over again i did not tell me tell me why iraq i did not read that column as defining or will translate it buffers as having that storage capacity but rather referring to some set of buffers that have that capacity without saying that all of them correct i think it's noting that it is an advantage of the transmit data vote for the ability to signal i have not made myself clear because of the absence of a definite article a number of quantifying article it doesn't say in the prior are all dedicated transmit offers have this storage capacity but they are deficient it says some network adapter interfaces include dedicated transfer buffers into which a frame can be stored that doesn't say that all of the prior art dedicated transfer buffers have that property  trying to incorporate and that's noted in the summary of invention so it's trying to maximize the advantage of the transmit data buffer the storage elements of there's an error in transmission it doesn't have to go back to the host to read download that was the express advantage of this invention the disadvantage of the transmit data buffer was that it had to wait until all of the data of the frame was transmitted into the buffer so there was a latent c issue the just record confused that downloading of the data so it didn't have to go back to the host to download it again and with huzzaing and so i take it that because you're starting with the description of the prior are you don't really see much room for making an advance toward your position on the claim language but we i think the plain language is instructive i do but i think before we get to the claim one which i think it's important as a procedure we do to review what the prior art look like in the specification so we're starting expressly in the intrinsic record and the intrinsic record talks about the advantages and disadvantages of the transmit data buffer column on the advantages and the disadvantages of the advantage being it was faster it had throughput the data came in and flowed out the disadvantage was that data was not stored locally it was one load it is the term it's used in common one of the patent so in other words if there was a transmission there the fifer buffer had to go back to the host read download the data and start all over again as claimed one require the ability to make a second attempt at transmission if the first fails no but it does require the delivery of the buffer to store the data for transmission that claim language that was a claim doesn't talk about storing frames of about just storing data correct not necessarily a complete frank that's group that i wouldn't disagree with you on the first successful transmission to occur for this frame of data to be transmitted transmitted it had to go through sixty four bytes that's called the collision window there's testimony from all three inventors in our brief that talk about this collision when there's testimony from the expert talk about the collision with the first sixty four bytes as long as it gets through that the likelihood of a collision goes way down and successful transmission a curse that is no requirement to buffer store all sixty four i believe the patent language to use to successfully transmit it would have to have the first sixty four bytes so we didn't have to go back to the host  delaminated that in the descriptive material but i'm talking about a claim my our view is the acclaim language storing data for transmission requires the element of the transmit data buffer to specification including the summary of invention which talks about this being a transfer that they did offer but the talk about having resonant on the adapter the entire frame of data now this isn't a case where there's a paid experts on both sides coming up with different conclusion there are ten procedures in this record who have come out and said we read the patents for us because we read the claim  it's our understanding that you have to store a frame of data on the end that didn't we say in the remain and decision intent basically following what the supreme court had said tampa that the fact that an expert says this you know in what by definition is extrinsic evidence because it's newly created says here's how i interpret the intrinsic evidence that doesn't make that into a fact question fact questions are questions about facts about about facts external to the patent like when we in the you know mit or harvard computer science department use this language this is what we mean so it probably has that meaning in the patent but i don't it is any of the expert testimony here of out in the interpretive question of that sort or is it all i've read all the many columns of the patent and of the claims and this is how i would interpret it and that's not the kind of expert testimony that gets that turns it into a fact question but you know we don't don't disagree with your honest reading  despite despite that i think the fact weston here did this was this was granted anticipation was granted a summary judgment california what we're saying is there was demonstrative weight of evidence showing that the fact wishing should be resolved in our favor the only witness to come forward and offer a different conclusion was dr worker to a paid expert for the defense and dr worker didn't review in his opinion in detail the language of the specification the requirements of the transmit data buffer the advantages of the transmit data buffer that was given very cursory review when it was compared to the storing data frames requirement claims in a comparison to the sonic ram so we think that given the weight of that to be read so that the buffer left can hold an entire frame full stop or more aggressively and entire internet frame so that if you didn't have an ether net that my right to claim doesn't refer to internet as i know not directly crites so so if you had a protocol that had you know thirty two byte frame still might require a storage of that a buffer be at least thirty two bytes big plus whatever else it needs to hope that there are two bytes but that still wouldn't be enough for you you need to get it into the sixty four  suppression is there's no dispute that the sonic doesn't store at all the sonic unloads data so if there is an error it has to go back to the host where the memory has to read download the data and start all over again so this this ephemeral temporary storage the defendants call about in reality the data is not there it's unloaded out of the stock and that's described pretty clearly as a disadvantage of a fight in column one of the  data buffer stores data and that is in correct the transmit data buffer has it resident locally on the adapter so that it didn't have to go back to the host the fight folk unloads the data so it does have to go back to host and that created enormous performance problems in the file in the five and the record has numerous testing both by the defendants here and by three com showing the superior performance of this product art described in the background section as having disadvantages if your right in your view about the claims certainly or so the claims refer to monitoring the transfer of data into a buffer  system uses no thresholds at all is that right as described in that kind of a i don't superconducting well which is no resistance not at all your honor so it goes in one end comes out the other first in first isn't discussed anywhere in the prior art section of the pat so however it is disclosed and he sees me in the datasheet for the stock and we know that the datasheet for the sonic was not in not before the examiner because it's not  the front of the patent nor does it appear anywhere in the file history so it appears that whoever wrote the patent just didn't understand because they didn't have the the description of the sonic disclose the threshold determination in the early  transmission that is clearly set forth in the sonic data sheet so they claim that even though that doesn't distinguish the stock and what they described in the prior art or five those was a more conventional system where data just w one end and came out the other any began transmitting when the ear pfeifer was full instead of before the fi focus full and in fact if you look at the claim language of claim one of the eight sevent n which is reproduced in our brief you'll see that the phrase data frames as used in the claim in the particular phrase that mr herman refers to must refer to less than all of the data of the frame precisely because of this threshold of terminations it happens so we see first the buffer memory for storing data of frames in the first clause and of course there was an agreed destruction below that buffer memory means a memory for temporary storage of data so there's no dispute that that buffer memory stores data and there's also no real dispute that all the data that goes through that five zero is frame data that's to be transmitted that's clearly disclosed in the sonic as explained  y the defendant's expert below so then you look further down the claim and you see the means for monitoring the transfer of data of a frame to the buffer memory to make a threshold determination of an amount of data of the frame transferred to the buffer memory that's why in fifteen of column thirty and the next phrase refers to a means that's responsive to the threshold determination of the means for initiating transmission of the frame prior to transfer of all of the data of the frame so we know that when the claim uses the phrase data of the frame it's referring to less than all of the data of the frame and when the claim means all of the data of the frame those are the words that it uses and that same kind of distinction is also found in the description of the prior art itself so if you so when the patent talks about they'd of a frame being stored in a buffer memory it's talking about less than all of the data in it when it's referring to an entire frame of data as you see around one forty  that's what it says it says the frame you store in the transmitter they offer so again there's no real issue here so just say again what do you think under your view of the claim background section this two thirds of a column or something describes two different pieces of kinds of prior art yes one not a five says you put stuff into a buffer you have to wait until it's all there before you send it along and the problem with that is it delays transmission now let's talk about five forget about the first thing for a minute what in under your view of the economy what is the advantage over the  described in the description of the prior art i believe because the prosecuting attorney simply didn't realize that the advantage that it was talking about in the summary of the invention was actually present in the stock if they'd known that other i would like to mention briefly the the discussion that mr herman had about all the various advantages that are described in the prior art and of course this court has held in philips that the fact that the written description sets forth multiple advantages doesn't mean that the claim has to have all of those and of course the clean language here is conspicuously missing most of the things that mr harmon describes as advantages none of the claims recite the word various different features of the buffer memory he did so in various other claims so for example claim seven so where in the buffer includes a transmitter descriptor rings off you know other characteristics those are not found in claim one so the examiner refused me the prosecuting attorney was perfectly capable here of including various structural limitations of the kind of mr herman would have the court read and but chose not to include those in the claims that are at issue before the court today your honor the final history also includes a relevant portion here there was a rule one thirty one inventor declaration filed and this was in the record below in its reference ninety three seventy six in the joint appendix the inventor said to the patent office of course the overcome a prior art reference that a buffer memory storing a number of bytes of a packet that is storing data of frames as recited by the  the the intrinsic evidence here is very clear and it does not require storage of an entire frame or any of the other benefits that mr herman suggested like the sermon it think your honor i think your honor put your finger on the exact issue there were two advantages one for a fight photo one for a transfer data but for the advantage of the five it was the throughput it hit the buffer and w about those two possibilities being under the frightful label as it's used in the column one or anything else that is it's a highly technical issue that i'm not sure sure bears on the outcome but my understanding is that the fight  speed match the speed of the output so the data would flow through based on how quickly you could leave the bar yet so it doesn't get blocked at the entrance correct so the point is it was not stored in the pattern describes a column one is being when the exit started and i think that's right i think there was an ability to say ok when you get eight bytes my question specifically is there something i can look at in the record that says that i believe the sonic datasheet talks about being able to and a number when the bytes start early but the point is they're not stored there for successful transmission they don't meet the clean language if there is a problem in the transmission it doesn't have the advantage of the transmit data buffer stay at the podium or