in this is very important relied on the restatement of judgments section thirteen come in g in particular and in fact highlighted literally highlighted the section of that comment th your honor i respectfully disagree that it was not finally decided for purposes of applying collateral estoppel and i think that's what luban stands for and what the cases in the nicer to follow do than stand for the lumen court also if you re court went on to say that it was convinced that the party in that case the government did not have a full and fair opportunity to appeal the earlier ruling and therefore collateral estoppel didn't apply lumen case was relying on the park lane was replaced which is a supreme court case for that statement and if you if you look at the cases that have come since lumen in the ninth circuit now you've got additional cases that are relying on luban for the proposition that collateral estoppel can't apply to an interlocutory order it's not appealable or was not appealed and that's the the  response to the office action it was made clear that it doesn't include its foliation or let's just and i know you might have an argument that says that that's not right reading but let's just assume for the moment that that's how i read it then why isn't that a narrowing of claim which was more open ended that permitted something broader than patent you know always made clear that microgeneration which it did in one one place in the seven thirty nine patent did say also referred to as question i've tried to but the you know if you look at the the evidence kind of dealing with the issue of infringement now but it's really never been disputed that microgeneration is a type of mechanical explanation i mean pressers own product literature makes that clear and so i think what the inventor was doing in in describing these various skin procedures was saying you have  don't think we don't think that intervening rights apply here and we are hopeful that the court will reverse on collateral stoppel and actually rule on the issue of union rights that's really all we want to have one opportunity to appeal wrote that opinion on this court said that that was not a narrowing because you don't necessarily have a narrowing even though an amendment is made in response to prior art and your honor i will point out that alter was consistent during the second reexamination alter specifically said after repeatedly arguing our patent is limited to market immigration human doesn't perform i can ration the patent examiner finally agreed with that know i think that though perhaps an easy way to think about some of the questions that have come up is to focus on a device that removes only only does x felician this is kind of a these kinds of devices come up three quickly in this case not only on the validity questions but also on infringement because our expert testified in on collateral stoppel then the court has identified that the luban case in the ninth circuit does specifically dress the rule that should apply although in the case before government had to parallel cases going on the same tax issue it lost in the first case but it had not yet gotten its appeal heard and then the lubin case won the race to the ninth circuit and the lumen case the district court said well you've already lost this issue once but i'm going to let you let a gated again they got up to the night circuit for review and the taxpayer said well you should have applied that for earlier ruling and the ninth circuit said in this circumstance it would be unfair to do so now the fairness issue is to spring from the finality of here the fin finality into the ninth circuit standard is a matter of discretion for the district court it has to be sufficiently far and there are some number of factors that the court looks at to make that determination if it's determined to be final sufficiently firm then there's a second question assuming all the other requirements are met and that is is it fair in this circumstance to apply collateral stop that's another discretionary decision for the district court that will be reviewed for abuse at the next level ok so those both of those issues were kind of percolating in the lubin case and led to the ninth circuit agreeing that it was inappropriate to or that the district court was within  judgments one of the comments indicates that there are some factors to consider in terms in determining finality and the ninth circuit largely adopted that in its discussion of what the district court ought to look at when determining if very very similar to our facts some education in case number one settled before judgment was entered and then argued that the summary judy cation ought to be applied in case number two we have polled the claims were limited by functionality news or actions and so we're indefinite under williams and basically after the reexamination all of the claims all the apparatus claims require that the user used the device for micro dermabrasion which was now specifically designed to exclude me so obviously if you have layers of skin the first layer is the dead cells and debris that's when that's removalist explanation that reveals the living cells and then as those cells are removed that is the new definition of preamble of a crime i don't have one on the top of my head but the preamble here as i understand that what you're asking us to do not not entirely not the functional limitations come both from the that they should be limiting in this case and  that is at pages three zero seven zero eight of the appendix that's a specific argument that altair made which i think takes this case outside of the usual rule is not limiting only the limitations of the mint or limiting so when our view williamson applies equally to the preambles in this case but in any event there are other operational limitations in the in fact the record reveals that the how much skin is taken off is entirely up to the user it's not a function necessarily of the device well there are in this from this court th when there can be functional language and the functional language constitutes describing a property of some product or structure and so maybe what's going on here is  looked to be an infringing device you have to be a device that is in fact capable or suitable for performing micro dermabrasion what's wrong with that is that would have been a plausible interpretation but it was not the one adopted by the district court and it frankly i don't think it was one that was pursued during the reexamination the argument in the reexamination was that the device had to be used to remove living cells of the epidermis and that and that restriction was placed in the claim so that it says a device for micro demonstration with immigration having the new definition and then moreover as i've indicated the limitations themselves then go on to say during use living cells are removed from the record from the part by user actions so that's anyway that's the main issue on the on the cross appeal the remaining issues have to do with they were just fact issues created with respect to infringement  validity again we used the vice removed only that cells did not remove living cells the district court found in that well that it does which must mean or it removes cells from the epidermis and so therefore it infringes but at the same time he rejected prior art such as surely because there was no suggestion that to remove the  remove dead cells so we have a situation here i see him in my rebuttal time will try to tie this up we have a situation where the clink instruction that we were facing was blue and it depended on whether we were reports on both in validity and that could be no interpreted as meaning that whatever surely is doing it is simply too light of a touch to be regarded as my for dermabr and living cells is a red herring dead in living cells wasn't discussed in the prosecution history i don't believe it was discussed in judge ariel's order the question is whether to remove cells from the without damaging the dermis and i wanted to make one point which which does go a little bit to both the not infringement argument but also can be relevant to intervening rights in on the statement in this sort of definition during the second examination by the inventor i'm sorry by mr walker was not the inventor he was the later owner of the company but he describes what m you know in this pattern marketer ration is the attachment of the abrasive as just jen recognize with this question a moment ago permanent attachment of an abrasive to the treatment it the surely device does not disclose it permanently attached abrasive to the tip surely device discloses a i think it refers to it as a cup or the edge of a cup there's no abrasive attached to it and in fact in terms of the prior art that presser has relied on in this case the only prior art that actually had an abrasive attached to it was the drill bit for drilling marble and stone that judge real rightly found was not analogous art the only other two records of surely and brenner absolutely have no abrasive attash and that was the key one of the key things of mr waldron's invention was you take your braces you actually apply it to the treatment and then you don't found that there's unlike williamson there is a lot of structure to perform the function my current immigration discloses in all of these claims and so williamson is not persuasive l i think that issue there and some other cases was that the claim language actually included user action that's not the case here in some of those don't apply and finally just if i can close my collateral stoppel to sort of  restatement section thirteen comment again that's exact same restatement section comments that the ninth circuit relied on in lieu been and has continued to rely on and the standard of review we believe is  i'm happy to intern questions the court might have otherwise i'll surrender the balance of my time and i will find a cite for the court to send it along of course with the rules and give mr brown thank you