straw and good morning your honor sir may please the court even master card there's not defend the p taps claim construction as it's written and we see this in the red briefs pages twenty six to twenty seven and i submit how could they because the claim construction as it's written expresses a logical contradiction it can i fit just make sure i understand some of the you know what the board decided and believe that correct except that your conceptual mistake about what it means to be in one or more merchant limitation is pervading the opinion well but it's definitely correct that we did not independently argue the one or more if the single she claims were unfair and asked of the single merchant claim the board relied for this for the claim single merchant claim claims the board relied on one portion of call in the chain of stores portion and not on another portion which obviously mastercard thinks is significant because it actually put it first in its bullet pointless column lines thirty five or something that refers to the one time single transaction idea and you have a footnote in your great brief that says that doesn't really five because you have to be able to have multiple transactions for anything but that was not decided by the board so what we have in front of us is a single merchant claims the particular limitation or payer of limitations applied to the single merchant claims and the question is favor any reasonable construction can that cover the chain of stores example well yes under the broadest reasonable constructs i'm everything you said your honor that's exactly what i understand the procedural posture case  improper methodology of using one of one of the problems i've had with the breaching of this case is that so much of it is about you know medical questions method questions as opposed to just asking what is the range of reasonable constructions of his this claim term and large parts of the other side's brief attack particular arguments you make that's why you're trying to define what i think the issue is and the board i think on page seventeen eighteen of it s opinion seems on the one hand to refer to it as an application question and on the other hand once at least on page eighteen refers to it as our claim construction about the chain that changed or  not clear to me it makes a lot of difference which category you put it into the question is can this language apply to either a target on the one hand or mcdonald's on the other hand i can think of a perfectly good reason it can't apply to target because you've said target and target is the merchant regardless of where you go and so it's it is a single merchant but you identify who it is so you can't have that meet the second element and for mcdonald's it's not a single merchant because they're franchises so i i'm not sure why it matters whether this is claim construction or an unreasonable application i guess that's what i want you to address rather than they follow the wrong methodology or anything like that naturally let me let me just get right to the heart of it so a good example quotation from the claim language it's more or less the same formulation all around said single merchant limitation being included the stations are course i am having trouble finding it but i think if we look at clean twenty one will see you know those exact words or at best the nominal difference at the appendix sixty eighth thank you  slot and then later there's a time requirement or timing requirement where you populate that slot with who the consumer has gone to identify a particular merchant that's really the heart of it at this point is maximum consumer flexibility supported by the prosecution history at a fifteen zero one that's where there's a may thirteenth two thousand and nine response to an office action which crisply and clearly explains that this is a great and wonderful invention because the consumer doesn't have to really know who who is going to end up being in the single merchant limitation because the consumer has maximum flexibility to go out and he ask you something about and this has to do with why i started with distinguishing the single merchant claims from the one of the more merchant claims and the single merchant claims it is really pretty claim the particular merchant you haven't identified is the single merchant less clear on the one one or more where it is at least on its face before you get to any prosecution history seems at least more it miscible to say you can give a kind of group descriptor and group descriptor doesn't necessarily identify a particular merchant so i guess i mean i'm interested in  your view of whether it's the prosecution and we we don't have that question in front of us because the board relied entirely on the single merchants limitation and said that was  unpatentable or single merchant claims they were in unpatentable and everybody agrees if they were unpatentable the rest are but it seems to me imaginable imaginable that there are two different results for the two classes of that there's only one sort of extra perspective to add to the one or more merchant limitation and that is when you think of words single merchant limitation as a numerical quantity definition of one you think of the one or more merchants limitation as a numerical quantity definition of one or more but i tried to fight night and identified a number i think if it is a the page thirteen or something there's if there's a paragraph or couldn't quite tell when they're what everybody agrees is that you act yes it's on page thirteen at the bottom one or more merchants everybody agrees means one merchant to a clear reality of merchants where the number of merchants is a finite number respectively does that mean that a particular number has to be given to the let's call it the security company and says thirteen that's how many organ player is something more like computer stores right in practice we live in a finite world so there are only a finite number of the not the circuits in practice it would be the consumer telling the authorizing authority i want thirteen differ merchants a lot on this card the consumer walks around it store number fourteen in the card is going to be dissident the client or unapproved that's that's how that would work in practice in implementation that's right i'm going to my rebuttal time but if i may i think i can't leave the podium without making one point and that is that we have a reexamination file history here and we have a reexamination certificate that happened almost what overlap so there's a lot of simultaneous activity between the central reexamination unit and the there words inconsistency confusion in the appearance that the p t o in this orca sanction two diametrically opposed decisions if the reexamination confirmation stood at the same time that their arguments and the  prevailed and we actually agree with that perspective on on what eventually happened and it was just an argument that that the board with just didn't give attention to that it's kind of a procedural they have to proceedings and their end my point of view is that what they said is it's not consistent with what we're holding today so therefore it's confusing but it really should have operated in the other direction if it's not consistent with what they holding then they should have gone to the teachings of temple lighting the case that they set themselves in which the shared understanding of what a clean means between the examiner and the reexamination patente control alchemy of what the proper claim construction was this is not a matter of prosecution disclaimer this is a record showing a shared understanding that was utilized by the by the office and by the patentee and that was disregard it so  logical contradiction in the construction and the area that was alluded to by my friends here has to do with the sort of beginnings of that construction the first couple words in that construction and what it means that the merchant limitations are included in  what exactly is being referred to there none of that is relevant to the analysis if you have applied here with respect to cohen if anything that construction to the extent it's in any way erroneous simply narrows the claims and so has the what could what is the single merchant can include target because it doesn't tell you which target store it goes to credit if you have how can that be anything other than just and reasonable oh reasonable as in have the cation or on reasonable as a construction it's completely reasonable because it was the same company you told the security company transaction target you don't go buy it at target i have somehow because the boards address the question of whether the same company means merchant claims don't say company the claim say merchant so you know you're asking i'll you're right the construction of merchant is very broncs of this is a very important point target is the counter party in a sale transaction in no matter what store you go to so if the claims were directed to your counterpart in a sales transaction that would be that would make sense but the board was very careful here the claims don't say that the claims have this distinction supposedly between single merchant and a particular merchant and what the board is saying is that those two terms don't have to mean the same thing right and i don't understand why that's rational because you  argument in support of the same position it's an argument in support of a construction that doesn't distinguish between the two cases you're talking about ok so let me just i don't you know i didn't i didn't understand what you think so let me let me maybe answered it slightly different way by focusing on what the board actually sad when they get to this issue because this point wasn't certainly not lost on the court i mean it was only they were not i mean they relied on coal in the one thing they relied on is change stories so they fully analyzed this construction on this exact issue so if you look the particular merchant without identifying the particular merchant so this is very important because it shows the board knows that the construction doesn't require that you somehow pre identify the particular merchant into the payment category which is let's suppose a logical contradiction that's being criticized here they make clear that that's not what they're doing they know that that their construction is not pretty identifying a particular merchant and they're saying that the single merchant is a broader concept and a particular merchant so you can have target as a single merchant and you can have a target on main street as a particular merchant those can be two different concepts why it is why is that not reasonable well just seems perfectly reasonable to the board they explain it by looking at the next definition which is merchant so here on again  relationship such that specific stores within a chain of stores are not individually merchants and so as i was reading that i put a big question mark excess and cessation what what could that possibly mean it means exactly what the board was talking about here when it gets him allies in the target situation which is you can say here's a card that's good in each part right now i take that now i have that card i pick any target i want to go to one of washington d c s and one  a case where i get a car going to new mcdonald's and i can go now any mcdonald's location in the country or in the world all of whom many of whom are owned by different people it's mixed with certainly there are many that are only different people this was an issue raised during the board's questioning in that in the  the transcript below and that's exactly the case where you clearly have now a merchant that's identified in one instance as mcdonald's but then it's identified as a particular franchisee location when you go to use that here's i guess my take on that look correctly it seems to me when you say mcdonald's the one thing you have not done is limit it to a single market because there are hiding what the numbers are let's call fifty thousand the donalds of which forty thousand are separate merchants well the boy the board is there you fall where this is where the supply and here they say this is an example where mcdonald's is identified as a single market i eat mcdonald's but then you can pick a particular location of mcdonald's where you're actually transacting with oh this is the this is the discussion that you quote here that three quarters of the way through your grief about how they conceded all of th franchisees being separate from mcdonald's as a corporate entity at that point regardless of where you're reading the triple negative supposedly but  so here's what it just back to the fundamental cision again you know the board says the bond of seventeen over to seven eighteen as discussed above the particular merchant is the merchant with whom the customer is transacting and a single merchant include the particular merchant in a broad manner without identifying the particular merchant and then they say those so the relationship between a chain and a particular store would satisfy that construction if in fact what the  now which is that the single merchant must become the particular merchant which is the only possible way you could distinguish this mcdonnell situation it seems to me that argument was waived because it was never made  not be there it could be but the company is not a limitation right so and i see i had known it does say that about target and not seeing that patent owner said that about mcdonald's which it seems to me would be unfortunate for its argument it seems to me fall system down and i don't see either on patent on a response thirty one thirty two which is joint appendix fifty four ninety nine to fifty five hundred or in the transcript pages which is what we were just going through fifty eight nineteen his fifty eight seventeen to twenty eight does not seem to me to tell me if i'm wrong that the patent owner agreed that mcdonald could it reasonably conclude that the single merchant didn't have to become the particular merchant could instead conclude that the single merchant includes is a broader concept and can include particular merchants within even within a single merchant umbrella that seems like a completely reasonable decision that the board could make given that there was no attempt to amend these claims and given that there was no construction proposed that would clearly distinguish that case until after they lost right only in the rehearing requested me for the first time see this argument that that particular merchant must that the single merchant has become the particular merchant which which you know the argument being made by the pound owners about x that excludes this this case of a target because as you point out then it's  target on both sides of the equation but that construction was never submitted to the p t o below they weren't given the opportunity to address this argument if they had been given the opportunity to address this argument they could have easily turned to another place in co i mean that's the point could be can also be combined thus the employee could be given a card for use in any computer store well that's an example of a single merchant any computer store that's not identified you pick your store you want they could have easily turned to this language which is a fake the claims under the argument that's now being made but they were never given the chance because this argument wasn't raised to them until the it's a level so eleven and twelve has the opinion and none of fails to provide us with a meaningful explanation as to how transactions are limited to a single merchant without identifying any particular merchant i guess i thought that it was trivially easy to imagine you get started right now when we send you the information to put into whatever that payment category is that's the yeah  registering but sure what's what was actually the argument that was being made that's had a response of something completely different having to do with pre identification of merchants and setting them up in immersion category code and none of those arguments are relevant to the issues on appeal but that i think was what was driving saying say oh now i see it fair enough and that's an argument that should have been made to the boards and they understood this point and a construction of as said single merchant should have been made so that the recognise hey what we're saying is has to be the same merchant on that the director of the center resemble nation unit and the examiner who eventually allowed these claims rejected the claims in the case of the examiner rejected them twice and it was only after the ex parte communications with his courses was not our tape r a couple of minutes thank you just really some points of information and i think a giant step back if a claim says two plus two equals four let's put alice aside for second if a claim says two plus two equals waving the argument because you didn't explain it that way the first time you explain two plus two equals four the main point is we have a pretty crisp language might be a difficult law school emissions test examination problem but it has a correct answer and the correct answer is exactly as your honor has been portraying it in questions to counsel the pre identification is forbid the use of information we talked about eleven or my brother talked about eleven where your honor pointed out the countries that didn't make sense i didn't hear counsel say that that sentence was correct i just heard him say it was in apas it next point of information is at russian because it turns out that there are about eighty about eighty percent of the mcdonald's locations are franchisees and about twenty percent happen to be just know i've eaten at about here with with those points