the first is district court cares in denying judgment as a matter of law on the issue of what's profits because in the first instance that's an issue of law for the court and the district court did not analyze properly the capacity issue because there was no evidence presented by tack on capacity and dish and other problems second the district court erred in claim constructions by not construing the container connecting conduit in the patent claim twenty six as a means plus function terms which was discussed during the claim construction hearing in addition there was not in the brief that twenty three s s i contends that quote claim twenty six requires that the outer casing connect the container the compressor close quote i believe that would require that if a construction that the outer casing rather than the kid that's a different issue than the means plus function issue here on earth in the means plus function the container the means plus times initially the container connecting card which should be construed as a means plus function turn which is a different point than the outer casing has to be the part that that and the fact that there are three separate independent clauses that talk about the shift from arising and that the so you're not arguing for any construction not on that issue that's just a plain meaning argument your honor and that there was not substantial evidence to said it probably makes sense to deal with it on cross examination that cracked that is correct your honor after being given the choice of either having a stipulation or it being done on cross examination the district court had decided that there would be a remedy and there would be a discussion of the i p r and left it up to do further object during cross examination i don't believe that there was a further objection during cross examination given the court's prior but the court had previously decided not to let the i the additional photos were in the record did you lodge a formal introduction to that rowing in the to the ruling on the bridgestone there's there's argument in on that there was a motion limiting is you have an alternative theory that is different than the theory you presented on the first round of appeals right with regard to bridge style that is correct or are we and so your view of our earlier opinion is ermine's of the infringement portion but to send it back on the validity question that is correct i'm going back to the point that judge will look raised which is that what the judge did in terms of  opening opening statement you talking about the original examination the jury doesn't know that was an okie are so your view of how the patent office looked at this patent in terms of whether or not the prior art was there or why why wasn't it just correct to say well you've done that and that's really all you have the issue so given that you've opened the door with respect to what was before the patent office of the examination it's only fair that the other side should sort of captain that by being able to point out the jury may i pay are which wasn't instituted the prior art reference was before the later then one would fear we conclude that the examination that you're referring to in the opening statement was the beginning and end of the patent office consideration of this matter in other words the patent office never looked at this patent with this prior art reference looked at this prior art reference so you know why isn't it just sort of failure well fair enough given our standard of review with respect to what the district court can  think because of the prejudicial nature of the eye care proceedings themselves they outweigh any probative value the opening statement was very limited just talking about every statement also was responding to something of the past he said in its opening say they spent a lot of time talking about the initial examination and how everything was before the examiner right that's correct your honor they did talk about they did talk about how the patent was allowed and what it was allowed over in those types of things what did they what did they  there were two patterns that were before the exam there was eric's and in the initial examination there was the erickson there was the inner dynamics patent i don't recall this attack on that whether they specifically called out those but i think they did by name they did say that the pattern was allowed conclusion that it can see that it performed a product to product comparison well in our view that's what they're they're saying they're not saying that they they're saying if we open the door to it or the s s i open the door to the product probably comparison but they're not saying that they didn't do it that's how i interpret their brief and from the record it's clear that that's what was done in the rebuttal closing there was a direct comparison of the tech kit which i believe we've we've had transmitted to your hon review it's opened up and they had that kit before them and then a picture of the s s i kid which is also before your r s and they compared them to show that they were the same  terms of the connection between the compressor and the container and that kind of comparison that product a product comparison is something that just should not be permitted to do we did now open the door to we spent time comparing the i kid and its operation to the claim language and also to a couple of figures in the past and but never to the to the tech product itself so as i review their brief what it looks to me like they're saying is that they did do the comparison but that we open the door to it but there isn't any basis to show that there was an open door how can s s i argue that there was no evidence that techs kit was a commercial an embodiment of the one ten patent or that no witness ever testified the on questions is this a commercial in body meant of the is the tech at a commercial buying of the one ten paddy wasn't asked about specific claims and whether it had all the elements in the claims and claim want to claim twenty six can have some differences between the two of them and the fact they claim twenty six there there's a requirement the outer canet outer casing connecting the compressor to the container and they argue and taxes that you claim want it sank hold with patios and he's he's saying that tac told the patent i don't think there's anywhere where someone went through claim by claim element by element said this is what's in the tact kit that was never done that was never part of the presumption politically and that the jury should defer to what the examiner concluded and for example is talking about how the patent goes to an expert or and he has to study what's already out there at the time and he would said the prior art does not disclose or render obvious an additional hose or three way valve and then he said these additional references do not teach or fairly suggest alone or in combination the invention as claimed here so he's affirming that hey i've looked at what's out there this three way valve an additional element new and worthy of protection so you having in or do just the initial examination and said that the examiner considered all the prior art why isn't it fair game for opposing counsel to say well here's some priority in the initial examination that wasn't considered what what's improper who are not before the examiner and he says there are some of these that he worked for the examiner and all of the discussion is about what was before the exam or the very same issue that you had raised yourself in the opening st going to page forty three nine zero the appendix with which is each of the of the transcripts that to forty forty to forty eight oh yes that's correct thank you ok so what do you want to direct perfectly clear that he's talking about the exam he says this is all of this patent has that wasn't by the examiners are you already in the priorities will talk about a couple of other pieces of prior  referred us to the sentence i'm reading the sentence what's misleading about this well the context is that the patent office did not see all of the references that that we're going to i did so you're saying that the confusion is that the jury could have construed the statement about what the patent office allowed to be talking about an ip are proceeding examination and relying on that and saying that the examiner had before the prior art because the examiner allowed the pattern there should be a presumption you know that they have a high river hill to climb and so on top where there's no confusion you  yourself you specifically and repeatedly told the jury about what happened in the initial examination and what i'm having trouble with is when the other side comes in and says well that's not quite right they didn't have all the prior art before them i'm having trouble saying what's which is three eighty nine out of their transcript so suppose we were disagree with you and say that you're opposing counsel now opening statements clearly just responding to what you were saying bringing to us is that misleading because you think the jury would have thought that by saying the patent office the other side was talking about an ip are proceeding is that what was misleading about it and that's why we s where is that where he was going to bring about a motion they say this conversation beginning at forty three five thirty two i think happens in a in a break with the so just again i'm sorry maybe it's me but i'm just trying you keep using the word misleading so i'm trying so the basis for the judge of your understanding of the basis for the judge's exclusion of this or trip being troubled by this is he thinks the jury could have thought that the pattern opposite did allow this because they added that that that reference the jury could construe as being the pieta proceeding correct to be the judge felt have been obvious to modify the spire are so they could make them without since i'm not suggesting they're necessarily to going to we don't that argument but why would would we have been interested or even thought about precluding some different limiting and i think it's useful to look at that it's a page twenty of the appendix which is also attached to the opening pre ruling was and then as far as i'm aware there wasn't a further thirty here's all you want to say about which is you know they just did it they didn't address the the british own reference they didn't out and certainly that's one of the joys you can use i mean that the court did not find fifty four to be cooperative with the tire precisely because it was an internal hose and you know property with the terribly the ready to be connected which was the particular elevator whether it connects daily container and ceiling it did compressor not that was the issue dr king specifically admitted that that element was part of that embodying device that's an age forty eight in the in the section of the of the brief that is discussing that the p g a proceedings we point out under the current case that we were it was picked give me a page of page thirty two you for since i did use of my time before i just would address the points to respect to the bridgetown reference not being allowed to show the additional of those that that was one hair that was then further compounded with the introduction system from having a fair trial to have those kinds of the significant piece of priority precluded from using it to show the additional hose and then also have either the court require a stipulation or a jury instruction that