the district court however took a complete completely different viewpoint of what this patent actually covers can i have done in what real world example could switching ever not to in some indirect way be dependent on distance a for example switching couldn't occur if you were ten thousand miles from something and it might occur if you were that is the correct so so how could the claim element that issue here accommodation but mostly the pre established one have a meaning that would be met by some even direct dependency of a distance which appears to be universal will be met your honor and that's part of the district court's error is that you took the word comprise the pre determined parameters of comprising a pre established vicinity right so he took the pre determined parameter comprising to be is so instead of allowing that distance to be part of a metric for the pre determined parameter to satisfy he said that no the distance had to be a pre determined parameter and from that he went in farther and said that the distance had to be measured are known by the cellphone in order to allow that switching to occur are you do you agree that some tonsil x but they maintain that distinction that there's a pre determined part which is ahead of time and then the prist that list and that's the selecting ahead of time so if there's a distinction between the clients language and the court just went back and forth in exchange those two terms and it's most evident in claims eleven and fifteen eleven an eleven through fifteen do not even use the word pre determined  pre determined parameters but the district court's construction injects that language and a pre established vicinity range of a pre determined maximum distance so the district court is just swapping these terms back and forth between the clients well if it were preferred embodiment which were specifically excluded by the district court which allows for choosing a particular transmission technology as the short range communication standard upon which the system will operate such a be able to set the can you indicate where in the specification it indicates that selection of the technology the outcome over without any further specification one hundred that part of the language there allows for the selection of the short range communications standard to satisfy how that language is previous stablished for the vicinity right which i don't but look at the very next sentence more specifically the pre established the city range may be currently defined as about one hundred meters however except the size of the actual vicinity range incorporated in the present venture may vary greatly and it's not limited to the indicated one hundred meters but doesn't that then bring you back to the notion that it is it is a pre established geographic limits that we're talking about yes in part the court to see mobile phone specification documents where they describe certain why five protocols that should be incorporated into their cellphones and routers and they've limited they have limits and there are much max distances the line does need to be for certain tower levels or for certain signal quality parameters and so distance is a component to the different why five standards to standards and but the cell phones have to be with and or outside that distance at no point in the one to prepare does it discuss measuring the distance or knowing the distance as a parameter to be switching back and forth between these networks communication standard the system operator there's also the substitution as we've already discussed of pre determined and injecting that into pre established percentages range and that affects planes that never even use the term pre determined on the expert testimony how does that include a maximum distance as part of an analysis and when to switch how does it include if i give comprising the meaning you wanted to a pre stablished vicinity of range signal strengths is when you hit a certain decimal point move we're going to switch how does that include distance at all the signal strength will include distance as part of that metric because as we get farther away inherent property of the signals and these systems trauma it's included as the inherent so when you get further away the signal strength goes down but it is the number of decibels right number of decibels doesn't decibels is an independent variable it just so happens when you get further away the decibels are going to go down likewise if there's a giant mountain in front of you the decibels are going to go down likewise if there's a lot of stress put on the frequency because a lot of signal use and a lot of noise around you simultaneously with other signal your signal strength is going to go down so there are lots and lots of different things that could impact the number of construction looked at some of the specification which talked about being able to transmit through walls and disregarded that language saying he came back to the need to be a distance and that's not correct distance is a part of the system but the system and claims are directed to simply or the phone is what then are outside the range of those why fire hours well that's that's your claim construction argument but if we don't agree with you in your claim construction argument i guess what i'm trying to focus on is suppose i agree with you on the word comprising means including yes but not on the rest of your argument that's where i am hypothetically and what i'm trying to figure out is does the parameter of signal strength include a pre established the city range or not and that's where i'm hoping you'll help me out help me understand why it does it does include it because much noise there is how many walls there are between you how many other signals competing all of that part of if you use the signal strength as a pre determined parameter of a part of the system to do the switching incorporated in to a determination of when to switch based on signal strength that will be incorporated into the decision to switch because you can pre established that the sanity range by selecting which why fight protocol or bluetooth protocol which have matched with distances within their specifications such as ten meters for bluetooth about one hundred meters for wife buy and those are the maximum distances a piece devices will operate according to the manufacturer specifications and t that's the difference if you want to modify it instead of using the maximum distance you want everything short of the maximum distance well even if the maximum distance you may not have the other parameter satisfied within the clients so you will need to this distance and the district court took that and modified it to where the device has to measure a specific actual distance and then switch based on that measured are known distance when it no point figure two is instructive of how these devices switch back and forth and it goes to demonstrate the district court's error that knowledge is not a part of the night to three clients if you follow through figure two and it's also described that column seven line forty two through column eight nine forty two it merely talks about trying to find the signal from the y fire out or and if it can't find one there it tries to find one on the cellular network and if it can't find one there it starts government algorithm over so this particular flowchart prefers a wide buy signal but they can't find one  thank you judge more and may please the court if i may i'd like to start with the last question that the court asked was your question judge moore and it goes to the heart of why to live so is claim construction and summary judgment arguments cannot hold up and that is you asked about whether distance is ever used in the switching decision there is no dispute in the record none whatsoever that distance is not used in the switching decision and there's an important point that got lost your honor in the discussion with mr jermyn that i want to point out of it goes to a question judge toronto asked as well and that is if the if distance is always a factor if it is always considered in some way if it correlates in some way as you said judge moore then what does this element add and that's a significant point because this element the pre established the sort of the range was added in prosecution to overcome prior art all of the claims it did not have this term were rejected and were allowed only when this term was added and the reason they were rejected is because of the four slow reference was the reference had quality of service which was used to determine which network packets which are circuits which to use the continuation in part which is refers to as a signal strength your honor in force low the the reference discusses decision making criteria including quality of service parameters which included in this is a quote great bucket maximum buffering requirement for the flow per packet delay that's a column ten lines two through fourteen it does not use the term explicitly signal strength that comes in your honor in the patent discussion and distinction of the awful reference during the continuation of part of the awful reference could not be closer  terms of priority it was incidentally prior to the original application as well and the awful reference talked about switching between a wife by network and a cellular network and does so explicitly based on signal strength in fact it talks about being close to the y fire outer and having a sufficiently good signal so you use the white fire rather then you move outside and you switch to the cellular network and in distinguishing the awful reference t patentee said that the aho reference switched based on signal strength the awful reference which based on signal integrity we had pre established the city range we had the requirement that distinguish the auto reference saying that the navajo g p s was used simply to to determine the absolute location of the wireless device not used for switches for switching the represent  signal strength and so whatever it's important to understand whatever this means we know it cannot be based simply on signal strength for several reasons one as your honor pointed out judge front early on this is that signal strength is an element in any system and distance is relevant in any system relating to signal strength the farther you go as a general matter the less strong the signal but that's if that's true and it isn't mr journey admitted of any system than this element pre established vicinity range which again was added during prosecution to overcome prior art into every single claim that it would mean nothing right and it wouldn't necessarily the crew that any switching system depends on this and she could have one that is based on one variable cell phone provider pricing at different times of the day absolutely then the last elements of the claim of claim one for example again added during prosecution would be meaningless you cannot switch in any system including the one that you just positive judge toronto if you cannot switch if you are not in a range in which you can switch then by definition you cannot switch so adding an element or construing the last element as calypso suggests to simply be any range in which communication is possible would add nothing you could never get through elements a through z of claim one for example and not satisfied playing element f if all the claimed element at meant was you have a pretty savage facility range which is an area in which you can stretch you can never you can never have an auto switching system in which you switch if you weren't able to switch and that's simply how calypso is suggesting the plane be construed and if i may just address make sure that i hit all of the points of course want to make sure i address any questions the court has so i go mal us to the pack and draws a distinction between pre determined pre established and political council told you that it does in fact it doesn't in the abstract of the patent it uses germ said it is an inherent property of signals generally that distance will be relevant and again we submit that's exactly why their proposed claim construction cannot make sense because what we're talking about is an inherent quality property so why don't you tell me whether it includes it not whether it uses it because i'm not sure that even if we change that claim construction the outcome is any different yes that's what i want you to address but i mean certainly you understand that comprising is a well defined term and today maximum distance the claim construction is not matching distance between construction is maximum distance between the handset and the router has to measure baptista's not the maximum distance of a signal not the maximum distance that may be generated by certain power levels of a router it has to measure the maximum distance between the wireless device and the router that measurement is never used not only is that not a parameter it's not an input to a parameter it's not considered as a parameter t mobile's devices are incapable incapable of doing that measurement as as configured the accused product doesn't mean that they couldn't be designed to operate in that manner but they do not there is no dispute on that question satisfy it of course it is a claim element added during prosecution and the claimant when as construed by the district court is a maximum distance between the wireless device and the router and that is never measure very long and well it just pre determined parameter variable which took into account noise signal strength and distance and then imported a number to identify switching perhaps this would be a different case yes your honor with one slight refinement distance between the wireless device and included many input signal strength signal integrity for example as well as a determination of the distance between the handset and the router then that could be consistent with the understanding of comprising that could establish out here but we do not have that here because again there is no dispute in the record and this is very important on the summary judgment there is your actually no factual disputes at all as to how the system operates and there is no allegation not in fact there's an admission to the contrary that t mobile devices measure that distance between the wireless device and the router so it is not only not itself a parameter second advance it is not a it is not an input to a parameter it cannot be an input to a parameter because the information does not exist in the devices are incapable of determining what is your response to the your friends on the other side wendy says that if in fact we read that claim the way that the tr court did that we're actually reading our preferred bottom it's wrong we're not reading out of corporate environment at all the preferred embodiments talk about using certain technology bluetooth technology for example and mention the fact that currently certain technologies have certain limits that would be employed one assumes into how one thinks about designing a system what should that distance be between the device and the and the wireless router for example are referred to as the peak on at during the briefing calypso said that that is not a prius stablished the city range in the reply brief and that he mobile somehow misunderstood with that with that figure is about that's not true at all in fact the lines four through can figure one circle that's a specific distance is referred to as the pre established facility range and it has to be a certain distance otherwise the terms range don't make sense in advance we have to set a specific vicinity around the router as a parameter used to make the switching decisions and the other point following up on questions that were asked not only must there be a maximum distance determine which cannot be here between the wireless device and the router but that distance must be used in the switching conditions as you pointed out judge toronto many things can be used in switching decisions including the carriers for example but whatever the parameter is has to be used in the switching decision here again your honor there is no dispute that the team mobile devices were incapable of determining distance and that the distance that is pointed to the distance in the test conditions for the signal how far the signal can go is never used itself as a parameter in making switching decision is never a question not an issue you know you know your o that is not so the point that i'm making very again following up on that the series of questions that have been asked is that this notion that the routers have certain distance is not used to make switching decisions and at best points out with at the district court that there is an inherent limit to how far signals can go that's true of any system and if that were all the point melman meant then the last thing element would have no meaning whatsoever we know that's not the case of course because it's an element and also because of the way it was discussed during the prosecution and once the claimant is given meaning once it's understood to be a distance then there is no dispute with respect to summary judgment because started its argument with they essentially point of novelty argument that would require the claims added during prosecution and any element added during the prosecution to have never existed in the prior art that's not the together that allows for the claims to issue not just one particular element which can take that one element by itself and get a claim to that that's true but when you add an additional element you narrow the scope of your cla which means that you could change your claim from an invalid plea broad claim to a valid claim those correct and the district court there is also discussion about how the phone and devices would actually measure that distance with which would raise serious an able man issues if the district courts claim construction stands as it is as it does now one less point t mobile radio issue of the t going to which we discussed