infringements like the jury case the judge had to give deference to our opinions drop all inferences in our favor in believe all of our analysts in fact we think what the judge actually did alone was the opposite of not let me start with the retraction issue that's the issue where it's required by the asserted claims claims thirteen nineteen and twenty one and that the needle retract into its guard know on that issue just to see two aspects of that one issue one part of it is the physical structure of the device can the physical structure of that kinda consumes device do that retraction step can i can i just direct oblique receiving which this court construed in the first appeal on that meant that the garden could slide in both directions on the needle and the needle could slide in both directions through the guard retraction because i want to track a retraction to occur the needle must slide backwards into the stationary guard that the guard must be stationary in the needle must move backwards into it and the distinction that was made but the structure was such that the state of the guards cannot be stationary and the needle being pulled back versions of the car they could not retract based on the structure of the of the needles therefore they did not  syringe various things can be attached to these needles and are including for the preferred body the something attached to the needle and that all the arm in the case is attached to something on my colleague's point you're not retracting that needle into the body which is what's required by the claim yes you are you're retracting the needle and then the body snaps around no no that's not correct ok will tell me why it's not i did do it a couple times with the samples up against it there's two ways to use of the needle so when i understand that the retraction  it's even if you do it i'm not sure which is one or two but you'll pull the guard against the skin and you retract the needle you're not retracting the needle into anything aren't you you're says i understand we're dealing with a method client your contention is that the method claims infringe only in the situation where you push the guard forward before retracting paper holds a guard against the patient's skin and then they retract the needle from the patient in so doing so they're retracting the needle tip into the guard but that is in the in the past and it's very explicit in the picture videos they submitted to the f d a and not one word of that was challenge bill up against the summary judgment issue how that works is what they do is make the injection to the patient they activate the the guard pushes up against the patients all because of the spring now there's two things stationary here the patients are in the guard that back that point because the needle can slide i that at that time and that was the court's construction of immediately simultaneously with rituals and patients and that's what this that's what this procedure does now what i'm having difficulty in understanding is why the process question before your time runs yes and that as you make the law of the case argument respective of these issues is is that argument made with respect to the retractible of simply would have to be immediate no existence not a retractable because retraction here saying here honor ma'am please the court too keen the claim it is asserting here and the repeatedly distinguished its retractable needle from prior art of aces with guards that moved over a fixed needle bribery issue claims of this hat and that did not require retraction in the method in the method where you hold the guard against the body however you are pulling that needle back through the guard you are after retracting into that is not for traction your honor for these reasons although retraction wasn't specifically construed by the cord it was described as backwards movement of the needle into a stationary guard with the b b c guide to vase the guard is not stationary it must be moved forward to cover the six needles even in that in arm or it why is the guard moving well before you got to that point you had to move the guard even if the needle within the patients arm you have to get the guard to the over center spring is ition otherwise the device on operate so the guard indeed these devices one stationary must be triggered by the user during prosecution and then be a distinguished both of those devices and three ways that are inconsistent with a claim against the p d device in this case in distinguishing the invention over sm said and this was referred to in this court second opinion in this case that smith had the usual needle sets too and extending from a syringe barrel and asserted that the needle therefore w  with bullshit myth and bayless you have to take the needle out of the patient and run the risk of some kind of accident before you would activate the protection with  your device and the claimed invention you can take the needle out of the patient without running the risk of exposing the needle in the line was that the critical distinction here well your honor because i don't think it's a fair inference from smith's and they want that you couldn't do the you know arm activation with those devices and the didn't distinguish those devices on that ground they operate in the very same manner that the safety by deface freight without you know to look at this mess of i l a p guard if you put the needle in the patient and triggered the l shaped guard before the needle was withdrawn from the patient to get over the tip you have to have the no your honor because the distinctions that were made during the file history were quite clear the needles in smith and bayless were fixed and they were fighting about six in the barrel of the syringe or six to the body of the  device which is the source of some confusion because here we're talking about movable we're talking about moveable into the car and it seems to me reading the prosecution history of smith and bayless they were talking about the body and the rear and whether or not the needle is movable with respect to the body the reason is that the distinctions are different well they were talking about both how the guard operated and then the user would have to trigger it forward but also the file history does refer when m device in this goes to your point generator may be fully withdrawn from the patients flash by an inattentive a rushed aspirator in exactly that unsafe position with the needlepoint exposed that's the same distinction that admittedly occurs with the the device that the operator may withdraw at the event the needle from the patient's skin prior to activating the safety safety guard and those three points of distinction were used to obtain the claims here with this retraction being the central method of ensuring that the needle the sharp tip of the needle was not expose prior to activation of the device infringement is that the safety glad to vase does not immediately positively preclude needle stick injury as required by the asserted claims immediately means simultaneously according to this court  with the needles withdraw from the patient in the court relied on the distinctions over smith in coming to that construction of the term that immediately was an essential feature of this invention to prove infringement m b o is required to show both direct infringement by a person who practice in this manner and that the be induced infringement of these methods claims and does not present evidence of that before the district court so on the evidence that the safety glass there was no evidence of the safety by ever having been activated prior to removal of the device from the patient to the contrary the evidence was that the d and strikes users to activate the divide after withdrawal of the needles from the patients these were in instructions that were before the claim construction issue or an infringement issue or in reality it's both and i think it's both your honor and yeah it's we engage in this little fiction that claim construction and infringement  different things but they never really are how do we resolve it course if it's clean construction no it's a legal issue and if it's infringement it's faculty so if it's as you dispute over the structure of the device and there's no there's no factual dispute to address on whether the flange goes over the forward surface of the body or  not the court has everything the district court had everything it needed and this court has everything it needs to resolve that issue as a matter of undisputed fact the briefs both have pictures where the court can see  the location of the flange relative relative to the body and we've cited the claim limitation over which is can be construed according to its plain meeting over the fr surface of the card so we think this court can resolve it without sending it back to the district  then use it later activated later is on structures that only existed in this case as of two thousand so we've asked them repeatedly to identify where these things existed before and they have not done so and the issue of the body