Case 1:20-cv-00034-ADA Document 49-5 Filed 04/10/20 Page 1 of 30
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`Exhibit 28
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`Case: 13-1378 Document: 30 Page: 1 Filed: 07/02/2013
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`2013-1378, -1414
`_______________________________________
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`United States Court of Appeals
`for the Federal Circuit
`_______________________________________
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`ANCORA TECHNOLOGIES, INC.,
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`Plaintiff- Appellant,
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`v.
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`APPLE, INC.,
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`Defendant-Cross Appellant.
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`_____________________________________
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`Appeals From The United States District Court
`For The Northern District Of California In
`11-CV-6357, Judge Yvonne Gonzales Rogers
`______________________________________
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`APPEAL BRIEF OF PLAINTIFF-APPELLANT,
`ANCORA TECHNOLOGIES, INC.
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`Dated: July 2, 2013
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`Mark A. Cantor
`John S. LeRoy
`Marc Lorelli
`John P. Rondini
`BROOKS KUSHMAN P.C.
`1000 Town Center
`Twenty-Second Floor
`Southfield, Michigan 48075-1238
`(248) 358-4400
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`Attorneys for Plaintiff-Appellant
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`

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`CERTIFICATE OF INTEREST
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`Counsel for Plaintiff-Appellant, Ancora Technologies, Inc., certifies the
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`following:
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`1.
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`The full name of every party or amicus represented by me is:
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` Ancora Technologies, Inc.
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`2.
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`The name of the real party in interest (if the party named in the
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`caption is not the real party in interest) represented by me is:
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` Ancora Technologies, Inc.
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`3.
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`All parent corporations and any publicly held companies that own 10
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`percent or more of the stock of the party or amicus curiae represented by me are:
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` None
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`4.
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`The names of all law firms and the partners or associates that
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`appeared for the party or amicus now represented by me in the trial court or agency
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`or are expected to appear in this court are:
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`
`
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`
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`Mark A. Cantor
`John S. LeRoy
`Marc Lorelli
`John P. Rondini
`BROOKS KUSHMAN P.C.
`1000 Town Center
`Twenty-Second Floor
`Southfield, Michigan 48075
`
`i
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`

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`TABLE OF CONTENTS
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`
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`CERTIFICATE OF INTEREST ................................................................................ i
`
`TABLE OF AUTHORITIES ................................................................................... iv
`
`STATEMENT OF RELATED CASES ..................................................................... v
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`STATEMENT OF JURISDICTION.......................................................................... 1
`
`STATEMENT OF THE ISSUE ................................................................................. 2
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`STATEMENT OF THE CASE .................................................................................. 3
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`STATEMENT OF THE FACTS ............................................................................... 4
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`A.
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`The Invention Of The ‘941 Patent ........................................................ 4
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`B.
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`Claim 1 Of The ‘941 Patent .................................................................. 6
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`C.
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`The District Court’s Order .................................................................... 9
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`SUMMARY OF THE ARGUMENT ......................................................................10
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`ARGUMENT ...........................................................................................................12
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`A.
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`The District Court Erred When It Limited “Programs” to
`“Software Applications” And Excluded Operating System
`Programs ..............................................................................................12
`
`1.
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`2.
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`3.
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`There Is No Dispute That An “Operating System” Is A
`Type Of Computer “Program” ................................................. 12
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`The ‘941 Specification Does Not Limit “Program” To
`“Application” Software Nor Exclude Operating Systems ....... 13
`
`The Recitation of “Application Software Program” In
`Claim 18 Confirms That The Term “Program” In Claim 1
`Is Broader Than Just “Software Applications” ........................ 16
`
`B.
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`The File History Does Not Narrow The Scope Of “Program” ...........17
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`ii
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`C.
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`The District Court’s Findings Regarding Operating Systems
`Are Unsupported And Contrary To The ‘941 Patent ..........................20
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`D. Ancora’s Construction Should Be Adopted ........................................21
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`CONCLUSION AND RELIEF SOUGHT ..............................................................23
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`ADDENDUM
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`Final Judgment ........................................................................................A1-A2
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`CERTIFICATE OF ELECTRONIC SERVICE
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`Claim Construction Order ....................................................................A3-A23
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`U.S. Patent No. 6,411,941 ................................................................. A42-A48
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`CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P.
`32(a)(7)(B)
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`
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`iii
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`
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`TABLE OF AUTHORITIES
`
`Cases
`
`Acumed LLC v. Stryker Corp.,
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`483 F.3d 800 (Fed. Cir. 2007) .......................................................................12
`
`Arlington Industries, Inc. v. Bridgeport Fittings, Inc.,
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`632 F.3d 1246 (Fed. Cir. 2011) ........................................................ 16, 20, 21
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`Cannon Rubber Ltd. v. The First Years, Inc.,
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`163 Fed.Appx. 870 (Fed.Cir.2005) ...............................................................15
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`Elekta Instrument S.A. v. O.U.R. Scientific Int'l, Inc.,
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`214 F.3d 1302 (Fed.Cir.2000) .......................................................................15
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`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed.Cir. 2005) (en banc) ............................................... 16, 21
`
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`Purdue Pharma L.P. v. Endo Pharmaceuticals Inc.,
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`438 F.3d 1123 (Fed. Cir. 2006) .............................................................. 18, 20
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`Texas Instruments, Inc. v. United States Int'l Trade Comm'n,
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` 805 F.2d 1558 (Fed.Cir.1986) ............................................................... 15, 21
`
`Statutes
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`28 U.S.C. § 1295 ........................................................................................................ 1
`28 U.S.C. § 1338 ........................................................................................................ 1
`28 U.S.C. § 1331 ........................................................................................................ 1
`
`
`iv
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`STATEMENT OF RELATED CASES
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`No appeal in or from the same civil action was previously before this Court
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`or any other appellate court.
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`v
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`STATEMENT OF JURISDICTION
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`The United States District Court for the Northern District of California had
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`jurisdiction over this suit for patent infringement under 28 U.S.C. §§ 1331 and
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`1338(a). This Court has exclusive jurisdiction over this appeal under 28 U.S.C.
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`§ 1295(a)(1). The district court entered final judgment of non-infringement against
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`plaintiffs, and dismissed all other claims and counterclaims, on April 29, 2013.
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`(A1-2.) Plaintiff Ancora Technologies, Inc. (“Ancora”) filed a timely Notice of
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`Appeal on April 30, 2013. (A2090-2091.)
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`1
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`STATEMENT OF THE ISSUE
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`Whether the district court erred when it narrowed the ordinary meaning of
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`the term “program” to “application” program, to exclude operating system (“OS”)
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`programs, where (i) the parties do not dispute that an operating system is a type of
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`computer “program,” (ii) the specification uses the term “program” in its broadest
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`sense, (iii) other non-asserted claims recite “application” program whereas the
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`asserted claim recites only “program,” and (iv) the Examiner stated in the Notice
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`of Allowance that the claimed “program” may be “running at the OS level.”
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`2
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`STATEMENT OF THE CASE
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`
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`Ancora alleges that Apple’s “iOS” operating system infringes U.S. Patent
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`No. 6,411,941 (the ‘941 patent). Ancora sued Apple for infringement in December
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`2010 in the Central District of California. (A51-54.) A year later, the case was
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`transferred to the Northern District of California. (A34.)
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`The parties submitted six claim terms for construction, including the term
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`“program” recited in claim 1. (A87-96.) Claim 1 is the only asserted independent
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`claim. (Id.) On December 31, 2012, the U.S. District Court for the Northern
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`District of California issued a claim construction order construing the disputed
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`terms. (A3-23.) The district court construed the term “program” to mean
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`“software applications” which, in the district court’s view, excluded an “operating
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`system.” (A13-18.)
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`“Based on the Court’s finding that the term ‘program’ does not include the
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`accused Apple’s iOS operating system,” the Court granted summary judgment,
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`which Ancora did not oppose given the district court’s claim construction order.
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`(A2084-86.)
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`The district court entered final judgment on April 29, 2013. (A1-2.) Ancora
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`appealed on April 30, 2013. (A2090-92.)
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`3
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`STATEMENT OF THE FACTS
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`A.
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`The Invention Of The ‘941 Patent
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`The ‘941 patent discloses a novel approach to reducing software piracy.
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`Inventor Miki Mullor (“Mullor”) recognized a need for his invention while he was
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`developing software for helping architects manage their drawings. (A1823.) He
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`recognized the piracy problem he would likely face if his drawing management
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`software was successful in the marketplace. (Id.)
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`Mullor considered prior art approaches to reducing software piracy. One
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`approach included hardware “dongles” that physically attach to the back of a
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`computer for licensing software running on the computer. (A1823-24.) While
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`typically effective at reducing piracy, dongles are very cumbersome for the user,
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`and expensive for the software developer to manufacture and ship to customers.
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`(Id.) Mullor also considered software-based anti-piracy techniques, such as the use
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`of software license keys (alpha-numeric codes) that are input at the time the
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`software is installed. (A1824.) While much less expensive than dongles, the
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`software-based approach is still a hassle for users because it requires users to keep
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`track of the license keys, and it is less secure because the license keys can easily be
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`shared together with pirated copies of the software. (Id.)
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`Facing these drawbacks, Mullor sought another approach to reducing piracy.
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`(Id.) He sought an approach having the advantages of the known techniques, but
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`4
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`not the disadvantages. (Id.) To achieve the security of the prior art dongles, but
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`without the hassle of having to supply software users with new hardware for
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`attaching to their computer, Mullor focused on the computers themselves to “figure
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`out if there’s anything in those computers that’s already there that [he] could
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`potentially reuse for a different purpose and have this effect of a, like a dongle that
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`we had before, that hardware attachment, without having to send the hardware
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`devices to my users.” (Id.)
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`Mullor and his co-inventor Julian Valiko focused their attention on using the
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`computer’s already-existing “BIOS” (Basic Input Output System) to “create an
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`elegant solution that has the advantages with none of the disadvantages” of the
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`prior art approaches. (A1824-1825.) BIOS was a component of most computers,
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`typically located on the computer’s motherboard. (A4.) During examination, the
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`Examiner defined “BIOS” as “the set of essential software routines that test
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`hardware at startup, start the operating system, and support the transfer of data
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`among hardware devices.” (A10.)
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`The inventors recognized that the already-existing computer memory in
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`which the BIOS was stored included extra storage space that was not being used.
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`(A1830.) The inventors decided to use this extra space to store the software
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`licensing information that was traditionally stored in the external dongles. (Id.)
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`The claim construction order summarized the invention as follows.
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`5
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`Patentees developed a third approach that had the advantages of both
`the hardware approach and software approach without
`the
`disadvantages of either. Patentees identified available memory space
`in hardware stored on the computer’s motherboard, the BIOS, which
`they repurposed to store software licensing technology. The inventive
`aspect of the ’941 Patent is that the writable, non-volatile memory[1]
`of the BIOS is not ordinarily considered to be a storage medium for
`software licensing technology. The advantage of using the BIOS for
`this purpose is that the level of programming expertise required to
`tamper with data stored in the BIOS is substantially greater than the
`expertise needed to tamper with data residing in volatile memory, and
`unsuccessful tampering comes with higher risk as it could render the
`computer inoperable.
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`(A4-5.)
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`The inventors spent 1997 constructing a prototype of their invention to prove
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`their idea worked, and they filed their patent application in 1998. (A1825.)
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`
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`B. Claim 1 Of The ‘941 Patent
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`Claim 1 is reproduced below in its entirety, with emphasis added to show the
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`disputed term “program” in context.
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`1 The district court construed the term “non-volatile memory” consistent with its
`ordinary meaning, as “memory whose data is maintained when the power is
`removed.” (A9.) “Volatile memory,” in contrast, is “memory whose data is not
`maintained when the power is removed.” (Id.)
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`6
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`1. A method of restricting software operation
`within a license for use with a computer
`including an erasable, non-volatile memory
`area of a BIOS of the computer, and a
`volatile memory area the method comprising
`the steps of:
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`selecting a program residing in the volatile
`memory;
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`using an agent to set up a verification
`structure
`in
`the erasable, non-volatile
`memory of
`the BIOS,
`the verification
`structure accommodating data that includes
`at least one license record,
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`verifying the program using at least the
`verification structure from the erasable non-
`volatile memory of the BIOS, and
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`acting on the program according to the
`verification.
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`
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`(A47 6:59 – A48 7:4.)
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`(A44, Fig. 2.)
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`
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`The following graphic illustrates an example of setting up the verification
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`structure in the BIOS, and verifying the program using the license record, as
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`implemented in a typical computer.
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`7
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`In the Notice of Allowability, the Examiner summarized the Reasons for
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`
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`Allowance of claim 1:
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`[T]he closest prior art systems, singly or collectively, do not teach
`licensed programs running at the OS [Operating System] level
`interacting with a program verification structure stored in the BIOS to
`verify the program using the verification structure and having a user
`act on the program according to the verification. Further, it is well
`known to those of ordinary skill of the art that a computer BIOS is not
`setup to manage a software license verification structure. The present
`invention overcomes this difficulty by using an agent to set up a
`verification structure in the erasable, non-volatile memory of the
`BIOS.
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`(A302, bracketed text added.)
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`The ‘941 patent issued in June 2002 (A42), and was reexamined in May
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`2009 (A49). The patentability of each claim was confirmed in the reexamination.
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`(A49.)
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`8
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`C. The District Court’s Order
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`As stated above, the district court construed six terms in claim 1, including
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`the “program” term at issue on appeal. The district court construed the term
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`“program” to mean “software applications” which, in the district court’s view,
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`excluded an “operating system.” (A13-18.)
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`“Based on the Court’s finding that the term ‘program’ does not include the
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`accused Apple’s iOS operating system,” the Court granted summary judgment,
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`which Ancora did not oppose given the district court’s claim construction order.
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`(A2084-86.)
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`9
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`SUMMARY OF THE ARGUMENT
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`
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`The district court improperly narrowed the term “program” to “application,”
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`a term that the district court held excluded operating system software.
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`Apple does not dispute that the term “program” ordinarily encompasses an
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`operating system. The ‘941 patent repeatedly uses the term “program” in the
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`claims and the written description, but does not define the term or even mention an
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`“operating system.” The specification describes an “application” as an “example”
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`of a “program,” stating the example “is by no means binding.” Confirming that the
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`term “program” is broader than “application,” the Applicant amended unasserted
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`independent claim 18 to narrow “program” to “application software program.”
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`Asserted claim 1, however, was not limited to an “application” program.
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`The district court held that an Applicant remark in the file history gave rise
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`to prosecution disclaimer, but that remark pertained to the software that performs
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`the method steps – not the claimed “program” on which those steps operate.
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`Contrary to the district court’s decision, the Examiner stated in the Notice of
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`Allowance that the claimed “program” may be “running at the OS level.”
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`The intrinsic record is unanimous that the broad term “program” includes
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`both application programs and operating system programs. The district court’s
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`contrary construction should be reversed, and the term “program” should be
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`10
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`

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`construed according to its ordinary meaning, namely “a set of instructions that can
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`be executed by a computer.” (A13.)
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`11
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`ARGUMENT
`
`
`A.
`
`The District Court Erred When It Limited “Programs” to
`“Software Applications” And Excluded Operating System
`Programs
`
`1.
`
`There Is No Dispute That An “Operating System” Is A
`Type Of Computer “Program”
`
`In its Markman brief, Ancora provided intrinsic and extrinsic evidence
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`establishing that those of skill in the art consider an operating system to be a type
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`of computer “program.” (A124.) The prior art Misra reference, upon which the
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`Examiner relied in rejecting claim 1 during examination, expressly describes an
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`“operating system” as a type of “program.” (A1420, at 5:65: “programs include a
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`server operating system.”) See, Acumed LLC v. Stryker Corp., 483 F.3d 800, 809
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`(Fed. Cir. 2007) (cited references are part of the intrinsic record). Apple’s own
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`patents confirm that an “operating system” is a “program.” (A1439, U.S. Pat. No.
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`6,178,464 at 3:34-35: “An operating system 180 is a program that controls
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`processing by CPU 110.”).
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`Apple’s Markman response brief did not dispute that those of skill in the art
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`consider an operating system as a type of “program.” Apple instead contended that
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`fact was “irrelevant.” (A1474, n. 11.)
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`12
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`

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`The district court also understood the breadth of the term “program” to those
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`of skill in the art, finding that “to a computer programmer, a program is a ‘set of
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`instructions.’’ (A14.)
`
`
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`2.
`
`The ‘941 Specification Does Not Limit “Program” To
`“Application” Software Nor Exclude Operating
`Systems
`
`The district court found that “Ancora’s use of the word program throughout
`
`the ’941 Patent only refers to application programs.” (A15, underlining added.)
`
`This finding is incorrect, as demonstrated below.
`
`The Abstract and the Field of the Invention each reference a “program”
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`broadly, without any mention of an “application.”
`
`ABSTRACT
`
`A method of restricting software operation within a license limitation
`that is applicable for a computer having a first non-volatile memory
`area, a second non-volatile memory area, and a volatile memory area.
`The method includes the steps of selecting a program residing in the
`volatile memory, setting up a verification structure in the non-volatile
`memories, verifying the program using the structure, and acting on the
`program according to the verification.
`
`(A42, emphasis added.)
`
`FIELD OF THE INVENTION
`
`This invention relates to a method and system of identifying and
`restricting an unauthorized software program's operation.
`
`(A45, emphasis added.)
`
`13
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`

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`Like the Abstract and the Field of the Invention, the Background of the
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`Invention refers to “programs” without any mention of “applications.” (A45.)
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`The Summary of the Invention begins with a broad reference to “software”:
`
`The present invention relates to a method of restricting software
`operation within a license limitation. This method strongly relies on
`the use of a key and of a record, which have been written into the non-
`volatile memory of a computer.
`
`(A45, 1:38-42, emphasis added.) The next paragraph introduces “a specific non-
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`limiting example” involving an “application,” namely Lotus 123. (A45, 1-43 –
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`2:60-61.) The example concludes with the statement “[t]he example above is
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`given for clarity of explanation only and is by no means binding.” (A45, 2:60-61.)
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`Following this example, the Summary of the Invention expressly describes
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`the invention “in its broadest aspect” with reference to a “program,” not an
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`“application.”
`
`In its broadest aspect, the invention provides for a method of
`restricting software operation within a license limitation including; for
`a computer having a first non-volatile memory area, a second non-
`volatile memory area, and a volatile memory area; the steps of:
`selecting a program residing in the volatile memory, setting up a
`verification structure in the non-volatile memories, verifying the
`program using the structure, and acting on the program according to
`the verification.
`
`(A45, 2:62 – A46, 3:3, emphasis added.)
`
`The Detailed Description uses the term “program” fifteen times, and the
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`term “application” three times. (A47.) Just like the Summary of the Invention, the
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`14
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`Detailed Description expressly introduces an “application” as an “example” of a
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`“program” that may be verified. (A47, 5:28-30.) Nowhere does the Detailed
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`Description state that the term “program” is limited to an “application,” or that it
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`somehow excludes an operating system program.
`
`Claim terms enjoy their ordinary meaning unless the specification “clearly”
`
`sets forth a special definition. Elekta Instrument S.A. v. O.U.R. Scientific Int'l, Inc.,
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`214 F.3d 1302, 1307 (Fed.Cir.2000); Cannon Rubber Ltd. v. The First Years, Inc.,
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`163 Fed.Appx. 870, 875 (Fed.Cir.2005) (“These two cited instances, however, do
`
`not clearly indicate that the patentee intended to assign a more narrow definition to
`
`the phrase ‘in the body’ than it would otherwise possess.”). The ‘941 specification
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`does not “clearly” define (or even attempt to define), the term “program” in a
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`manner that is limited to just “applications” or that would exclude an operating
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`system.
`
`The district court erred when it limited “program” to an express “example”
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`set forth in the specification. Texas Instruments, Inc. v. United States Int'l Trade
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`Comm'n, 805 F.2d 1558, 1563 (Fed.Cir.1986) (“This court has cautioned against
`
`limiting the claimed invention to preferred embodiments or specific examples in
`
`the specification.”).
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`
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`15
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`

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`Case: 13-1378 Document: 30 Page: 22 Filed: 07/02/2013
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`3.
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`The Recitation of “Application Software Program” In
`Claim 18 Confirms That The Term “Program” In Claim
`1 Is Broader Than Just “Software Applications”
`
`The doctrine of claim differentiation indicates that the term “program” in
`
`claim 1 is broader than “application.” Asserted independent claim 1 broadly
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`recites a “program,” whereas unasserted independent claim 18 recites an
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`“application software program.” The modification of the term “program” in claim
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`18 indicates that the unmodified term “program” in claim 1 is broader than
`
`“application software.” Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed.Cir.
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`2005) (en banc).
`
`In Phillips, this Court found that the claim term “steel baffles” “strongly
`
`implies” that the unmodified term “baffles” is broader, i.e., the term “does not
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`inherently mean objects made of steel.” Id. In this case, recitation of “application
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`software program” in claim 18 “strongly implies” that the unmodified term
`
`“program” in claim 1 is not inherently an “application.”
`
`Ultimately, changing the meaning of the term “program” in claim 1 to
`
`“application program” found in clam 18 “improperly discounts substantive
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`differences between the claims.” Arlington Industries, Inc. v. Bridgeport Fittings,
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`Inc., 632 F.3d 1246, 1254 (Fed. Cir. 2011). Nothing the ‘941 patent limits the term
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`“program” in claim 1 to “application” programs, or excludes an operating system
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`program.
`
`16
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`

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`Case 1:20-cv-00034-ADA Document 49-5 Filed 04/10/20 Page 24 of 30
`Case: 13-1378 Document: 30 Page: 23 Filed: 07/02/2013
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`
`
`B.
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`The File History Does Not Narrow The Scope Of “Program”
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`The district court also found that the Applicant disclaimed a broad
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`interpretation of the term “program” during examination. (A17-18.) The district
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`court based its finding on a remark in which the Applicant described his invention
`
`as an “application” program. The district court found:
`
`Moreover, the Patentees specifically described their invention as an
`application program in order to overcome rejection based upon prior
`art. This rises to the level of prosecution disclaimer, and clearly, it
`demonstrates that Patentees and the Patent Examiner understood the
`invention to apply to application programs. By emphasizing that the
`’941 Patent is a “[s]oftware license management application[],”
`Patentees themselves narrowed the ordinary meaning of the claim
`term.
`
`(A18.)
`
`
`
`The Applicant’s “software license management application” remark was
`
`referring to the “invention” of claim 1, i.e., the software that performs the claimed
`
`method steps. (A293.) The statement was not referring to the “program” to be
`
`verified – i.e., the “program” on which those method steps operate. The
`
`Applicant’s remark did not even mention the term “program,” let alone exclude
`
`operating system programs from the scope of that term in the claim. On the
`
`contrary, the Applicant stated that “[s]oftware license management applications,
`
`such as the one of the present invention, are operating system (OS) level
`
`programs.” (A293, emphasis added.)
`
`17
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`

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`Case 1:20-cv-00034-ADA Document 49-5 Filed 04/10/20 Page 25 of 30
`Case: 13-1378 Document: 30 Page: 24 Filed: 07/02/2013
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`
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`Significantly, in the Reasons for Allowance following these remarks, the
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`Examiner made clear that the “program” to be verified – the “program” at issue on
`
`this appeal – is an “OS-level” program:
`
`
`
`(A302.)
`
`Prosecution disclaimer requires a “clear and unmistakable” disavowal of
`
`claim scope. Purdue Pharma L.P. v. Endo Pharmaceuticals Inc., 438 F.3d 1123,
`
`1136 (Fed. Cir. 2006) (citing Seachange Int’l, Inc. v. C-COR Inc., 413 F.3d 1361,
`
`1372-73 (Fed. Cir. 2005) and Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314,
`
`1323-26 (Fed. Cir. 2003)). Nowhere in the ‘941 patent or the file history did the
`
`Applicant suggest that the claimed “program” to be verified is limited to an
`
`“application” program or that it excludes an “operating system” program. On the
`
`contrary, the public record on which the public is entitled to rely – e.g. the
`
`Examiner’s Reasons for Allowance – expressly contradicts the district court’s
`
`finding that the Applicant had disclaimed operating system software from the
`
`scope of the term “program.”
`
`18
`
`

`

`Case 1:20-cv-00034-ADA Document 49-5 Filed 04/10/20 Page 26 of 30
`Case: 13-1378 Document: 30 Page: 25 Filed: 07/02/2013
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`Moreover, in the same response the district court cited to find disclaimer
`
`with respect to asserted claim 1, the Applicant amended non-asserted claim 18
`
`(claim 20 during examination) to narrow the original claim term “software
`
`program” to “application software program.” (Underlining added.)
`
`
`
`(A297.)
`
`The Applicant did not amend claim 1 in the same fashion. It would be
`
`improper to impose a narrowing amendment (amending “software program” to
`
`“application software program”) from one independent claim onto a claim that was
`
`not amended. It would be especially improper here, where the Examiner’s Notice
`
`of Allowance states that the “programs” to be verified can include “OS level”
`
`19
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`

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`programs. (A302.) Arlington Indus., Inc. v. Bridgeport Fittings, Inc., 632 F.3d
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`1246, 1254-55 (Fed. Cir. 2011) (vacating district court’s claim construction
`
`requiring a “split” configuration where that configuration was added by
`
`amendment to other claims, but not the construed claim).
`
`Far from excluding operating system programs from the scope of the term
`
`“program,” the intrinsic record expressly includes them within the scope of claim
`
`1. At the very least, there was no “clear and unmistakable” disavowal of claim
`
`scope to support the district court’s finding of prosecution disclaimer. Purdue
`
`Pharma, 438 F.3d at 1136.
`
`
`
`C.
`
`The District Court’s Findings Regarding Operating
`Systems Are Unsupported And Contrary To The ‘941
`Patent
`
`Following its analysis of the intrinsic record, the district court made certain
`
`technical findings regarding operating systems:
`
`The ’941 Patent teaches verification of programs which cannot
`function unless the operating system is already running. While those
`programs may then operate at the “same level” as the operating
`system, a “[s]oftware license management applications, such as the
`[’941 Patent],” cannot function if the operating system is not
`functional.
`
` (A18, emphasis added.)
`
`While it is correct that “the ’941 Patent teaches verification of prog