the court must look to the specification for a definition of the term and the definition can be implied here has been t uses the claim term in the entire pattern specification consistent with a the titles quote replace the functionality of the user's desktop and offer similar in additional features that's a content second the specification repeatedly states un performed a bookmark function that's a column for column eleven in column eight anyone of skill in the art and indeed in the patent specifications described knows that a bookmark is persistent and that it about assigned information the second is persistence and the third is i'm a media access access upon selection yes but immediate access upon selection i want to start with assigned and associated i will confess i'm having a very hard time understanding what the distinction is i kept reading the sentences particularly i guess in your reply brief in which you tried to explain it and it could just be me but i still don't get it right it's very it's it's it's actually very simple and we did make it more complicated than it was so essentially and this gets to the next specifications reference i was going to get to the patent says when a tile is selected the tile instantly provides the user with access to the underlying information and the associated with a quote from the claims in the spec more refers to the tile being associated with an information source when it's not the selected and so that when the selection process occurs the the you then go to the information source that it's associated with and the reason important is one of the pieces of prior art doesn't do that one of the pieces a prior art if you if you select the title or the i know it will go to a link or a hotspot that is within the time well that isn't necessarily or even often is the information source that says subject to the time so the way i think about it the the selection upon access and the assigned are kind of go hand in hand because the notion is that you select the title and then boom you go to that which is assigned and that's also the bookmark references that i cited a moment  associated with an information source and according to the pattern you would have a view into the application or the information source at that point but then the assigned function takes into account when you actually select the tile you go to the information source that's viewed in the time and under some of the one of the pieces of prior art you don't and the pattern is very clear that that the references are already gone through and i'm going to go through two more now the path is very clear that the whole purpose of the thing is you view the information source selected and then you go to that information source that you're viewing not somewhere out and you don't need a link or a hotspot or something else that you add to the tile in order to access the information source and on the next two quotes in the last two quotes that i have on this actually talk about that up so fifth the tiling bridge structure quote overlays the user's desktop and resides over existing applications without replacing any of them and enables the applications to be called from the grid that's the assigned acce column thirty it makes clear that in doing the grid assign function the calling of the grid that i just talked about it quote replace reduce the user's desktop with a dynamic menu week system and then the last quote i'll offer is the patent clearly says the president mention comprises a grid of tiles that reside on the computers desktop so those quotes are not descriptions of a prefer box they are descriptions of characteristics that the tiles half the hath or else the statements wouldn't be true so if a tile is a persistent it can't be what mock it can't replace the desktop that we all automatically appearing on the screen or preserved in you know on the hard drive where you don't preserved on the screen so that when you when you boot up the screen you have the it replaces the existing desktop you have the more than embodied mint descriptions and correct how do we know that most of almost all the language not quite all that you quoted but almost all of that comes in the detailed descriptions of the preferred embody right but if you look at the nature of the disk of what is core of it the president ventured to do just that to take that one alone and i don't have this just as a concept as opposed to a specific thing in the in the spec but you could have a single session replacement of the user tester that doesn't well it your honor i don't think that's consistent with the way the specification describes i mean the way the specification is describing it is it it can go on top of the existing desktop situation it's a grinch structure it resides on it it's a memo that the first use of resides i think is in the summer the invention but that says the grid not necessarily a particular tile tiles right but but it doesn't say that each tile within it has to be the same from session to session even assuming resides means persistence across oh i think that think that's what it means and i think if you read the patent and its entirety the context of it is you've got a grid that has a bunch of tiles on it that sure of as a replacement for the icons that are menus that you fifteen right so that that usage seems to be talking using resides to mean not something you know like my residence for tax purposes or something it means this is where you're going to find it we find we well it i'm not sure it does this seems to be using the term resides over existing applications without indicating carrying a notion of session to session non transit well i would not agree with that you're out of reach if you go down to the bottom of that same paragraph it says it replaces the user's desktop with a dynamic menu and system so that the i pad you know i've use laptops and and regular devices the icons come back i mean you don't want to reconfigure your desktop every time you start it off and that's what that's referring to and then the other quote that  the court referred to is a column for lines thirty seven to eight and that's where it says the present invention comprises a grid of titles that reside on the user's desktop the path of really uses the term grid and tiles interchangeably the grid is the structure on which the tiles sit or reside and it covers the desktop i'm just a bit but why i mean why just tell me what's wrong with it i mean you clearly do think there's something wrong with saying when it says the grid resides so you can have say a six six tile grid and that comes up next time you would at the computer whatever it is and but you know numbers two and four may be in the same space but you know there are it's no longer you know the c n n and it's now live now the national weather service or something this is no place in the pan des plucked every single place in the pattern including those that i just described describe it as it is a permanent fixture unless you change so and not just the the  tile structure but actually the content of each tile yes i think all of those references if you read the patent in its entirety i think all of the references when it talks about a grid it talks about tiles that are placed in the grid were based not only on the disclosures of the references but the testimony of dr carter expert field and various other pieces of evidence we put in record as a factual findings supported by substantial evidence and they're entitled to death score no true i would argue there their argument about the meaning of the word access what they're really doing is arguing or disagreeing with how the board applied that part of the claim interpretation to the prior art and that's a fact question which is again entitled deference but even given you and that's because they did not make a a essentially a claim construction argument to the board that the access term really should mean immediate access or one click access or without further steps access to that and the fact that the actual phrase ology of the interpretation when select provides access was from their proposed interpretation they can appeal that they proposed that language and yes they never said how i kind of am i right in thinking that you need to be right about more than that issue in order to prevail that is suppose you were wrong about persistence and wrong about assignment  right about you don't need immediate access i think i think if if i'm right about that on the access issue i think you need to affirm because as we put in our brief all these prior art references them so i think that you confirm even if you disagree with us on those things i would like to say one other thing about access no we've pointed out there are examples of tiles that have not been you click on it and you're given the ability to manipulate things like the male tile just like some of the references in the past but we also pointed out that mr santoro said in a deposition that access could be just viewing it access was on the table and they knew it and they never said a word that they never went to the board and said no no no it's got to be immediate x and it's only here for the first time i don't think the court should hear that could be persistent could not be persistent it was just a feature one facet that one could program into the system so resides could must be interpreted with that background in mind could be for once so what in the specification gives us an indication that in this context when it says a grid of tiles that resides on the computer's desktop doesn't mean  does it ever separate does it ever contemplate the possibility that the grid abides but the tiles don't yes because it also says that the tiles can be obtained from a remote server and a more fulsome description of malcolm makes that that you read this as a whole and what this is about is about replacing that desktop that you know that you were given with another one and that's what's going to now come  taste it's not because those statements are isolated statements in the detailed description if you read this from start to finish you'll see what they're talking about is an application program not a new operating system program certainly doesn't exclude the possibility that this is a particular kind of application that's supposed to give you a new a new user user interface permanently that's right until you wilfully change it or something i think that's right and perhaps they went to the patent office and wrote a claim that said and desktop replacement then they would have they might be able to get a claim to do that but they don't have a claim in this pad that says anything about that and in fact they never asked the board to interpret the claims to require that functionality now so i don't think desktop replacement is even an issue in this appeal it couldn't be it was never decided blue never are what was argued was when selected by its access to information it right but the pattern never says that it never says that the tiles are persistent on the screen it says items in the database are persistent that's different just because there are so many even information about titles and database doesn't mean that they pop up every time you turn on your screen it never says tiles are persistent on the screen anywhere and it's to help you come up here he he can't give you a cite that it does because we all know the one place the word is used is column fifteen and what it says is i know by heart items in the case are persistent and that's all and so people can you make an attempt to explain what you understand the differences between this assigned to a that with that example where this there is a functionality in one reference to where you click on the tile or tile and a different window opens up that was not our primary case and they have never treated our pr our primary case was you have a tile prioritised like an active desktop like if you selected by mouse click or keyboard manipulation you the user is permitted to move around in that tile not another window in that time is permitted to manipulate things in that style such as activate a hyperlink that has always been our primary case and in fact to disagree with us i respectfully submit that the board would have to rule th user who has been given the ability to see a web page and activate links has not been provided access to that web page that's absurd and have been just a and that's because that's what active desktop did active  items permitted you to click on them click on a link in the web page move around in the web page highlighting different links activating different links and that was our primary case and the appendix page limits of course and limits on briefing are parts of every legal tribunal i know right and sometimes they can be unfair sometimes it can be potentially unfair to have it they have what fifty two claims if if they and the statute contemplates doesn't entitle but it contemplates one substitute claim for each claim if they had put fifty two claims in fifteen pages and then tried to make an argument about the meaning of the terms that they were introducing the written description support how each one of them claimed by claim is both supported in the spec and overcomes prior art is it how could they possibly have done that in fifteen pages well i think fifty two pages but clearly they're still it's a reasonable number of pages and they had the ability to convince the board to do something different they didn't actually ask for anything more than know and understand the not entirely clear to me although i will also say they haven't specified what they would have said specified here what they would have said what more importantly right they haven't specified what they did say it was their birth they were the movement it was their birth they didn't have a inscribed and they've made no attempt to show this what was actually said on the call so i was on that call i can't tell you today i don't remember exactly what was said i'm fairly certain the words due process were not that a p a requirement and maybe you're going to say they didn't ask and the story but that's what i'm interested not in whether they file a did but in the board violated the regulations or even violated due process but fifteen pages and you know as you mentioned well the argument is that they did not properly ask and they didn't show an abuse of discretion is also a valid argument in a fifteen page choose what you want to do and when you're briefing to this court you have to choose the arguments that unique and if they wanted to show say to us how they were prejudiced what do you think that they would have to show me in this thing in this case and assume assume with me again when i say i want to focus on prejudice just assume contrary to your position that it was well understood the dog by all the participants in the what the then it seems to me the argument here comes down to they just haven't shown in a case specific way that they were prejudiced but that's what do you think that they would have to show to try to make such a case well i think they would have to show that the has the civically asked if they had said they wanted to amend this many claims they wanted to come forth with these amendments and make certain arguments and they would not be able to fit those arguments in the pages but i do think in this case where we're looking at they could amend any claim into their amendment that would be an abuse of discretion but i think they are facing a tough challenge  term has a meaning of skilled in the art you have to look at the spec and and draw the characteristics of a second persistence it's impossible to be a bookmark with them without being persistent can't be done there for one through five eleven fifty to fifty two and eight thirty one to thirty two that can do it in in addition to all the other things that i talked about with persistence means that there's no way that the patent he couldn't have persistence as an essential characteristic of a tile third and my last point i'll give one more try at the assigned one or two elements of this claim construction either persistence and assigned assign the immediate access whatever our construction was it did break into wood and started to interrupt  entitled to the other two what what's the disposition i think we need to be reversed and remanded because there is some prior art that my fall out right even under that two provides access and selected means however you select the time you can double click it you can past of the over whatever mold of selection that provides access and that's what the  the and then i'll get to the assigned point because it's the same quote the tile instantly provides the usual with access to the underlying information when selected when selected and so what that means and then on column  that's column not i wind twenty five if you look at column eight at the top it shows how it's different from an icon i'm sorry i'm confused by the did the board's construction is  user interface element is content may be refreshed and that when selected provides access to an information source right so they so what is it you're saying well that bit of hate they didn't include with respect to this well what they what the way they're interpreted that is just like an icon and column eight at the top says that with an icon it doesn't provide access when you select it it provides the ability to get access when you select it so you click on an icon and then you click again and you get to the kid to the program whereas the patent describes only the selection process provides access or when selected you have access to the information source it's not a two step process and they are not applying the construction i mean the words there say provide access but i mean i have a laptop in the back i have access to my information at the back there open it turn it on click it get in and i have access to the information that's not the access that they're talking about here the access that the pattern talks about is when selected you says the tile instantly provides the usual with access to the underlying information that's the underlying information that is the title and so it is also the information that is associated with the title but when you select you go to that which it's assigned to the associated language reversed t in a static operation when when you're looking at the screen and you see the title and it is associated with an information source but this part of the definition requires that ok then when you select it you go to the