reviewing today followed the sack with the same process right made to the composite boards and he's acted the same way as they were made in the first case no we don't believe they are made exactly the same way your honor what happened that made by basically an that i mean that with respect to whether it's a board as defined previously or not that there's no significant difference in the later product from the earlier you're out of there are some very significant  wood or they weren't going to make it in the marketplace there's numerous memos and customer studies that happened apple what did he have to do with the question a generator ask you what is the difference with regard to the two dispositive claim limitations between the former tracks product and the later tracks with respect to those two claim limitations woodwards that are cut from a log are very consistent on their top surface they have a wood grain across their top surface court case law makes it clear that our original judgment only covers the products there in that case and any colorable changes we believe numerous claim limitations have been implicated by the new tracks products even if this court was to rule there were only interested in the extrusion aspects of the claim we still believe that they have been their original ports were very wavy on their top surface and inconsistent on the top surface the new ones as admitted by tracks below are very consistent as if they were planed a buy buy it would work the technique even though there extrusion they have a wood grain a lot of tar aning process it looks more would like but that's not the processes we're dealing with we're dealing the composition the extrusion and we're beginning with the concave mess none of that's changed from one to another without it looks more like wood in the second case than in the first case but that's not the claim limitations that are not method claims the claims in this case are apparatus claim i understand that in our court construed none the less to read a process into the terms manufactured by we understand your claim we don't believe the proper comparison of your and your honour's case law is to look at the underlying manufacturing process it should be because of the airplane instruction he's centrally read that process and almost made it a product i process on what we do i believe your honor it is a product across a source it's not but isn't that the effect of the claim construction we don't believe so you're out of a wrong that's what binds us that claim construction we certainly know because we didn't i believe that would be mixing issue preclusion with claim preclusion we never reach the issue of the doctrine of grace i'm sorry we never reach the issue in the first case of ever comparing the underlying manufacturing methods with with wood coming from iraq that issue was never reached it was only way that's my understanding from this court's law that that that issue that you raise would be a problem for us if there were issue preclusion because we were already would have litigator if if extrusion was similar to woodworking or not but that issue never came up was never heard by this court was never raised below because it was considered waived i believe that argument your honor with all they were significant was waived once used it's waived by stipulation you saying we agree there is no infringement if that has not changed why doesn't that statement of not infringement apply just as much the second time as the for your honor if we were here trying to break bring a doctor about clements case on the first products i wouldn't be here today the only reason we're here is because of this court case law that when material changes are made to a product you don't get an unfettered license trex position is they can copy anything in mr nice terms patent as always they don't use real wood cut from the law there have been underlying technology was dramatically changed we don't concede that they're using the same process we have all kinds of stuff in the record that they've changed their extreme process in order to make it more like wood there's never been a determination that the process they're using today on the board that they are using is somehow not equivalent under the doctrine of a quibble is it isn't your problem that in the first case you could have pursued an equivalen theory in addition to the literal infringement theory but for whatever reasons you chose not to and by not having that all back doctrine of a quibble and sciri in the first case you took a risk you were in effect betting that you would win so confident you would win a literal infringement that you didn't even bother to pursue as a fallback strategy equivalent to infringement and why shouldn't we hold you to that litigators tactical choice in the present case where you had it was a tactic what sorts in that case and we felt very confident and that was a pretty philips ruling and we and we of course you know what happened there we felt very confident that this court initially ruled in our favor and then after phillips you know the specification became more important so there was a gamble there and we live with that gamble we're not here on the trucks one products we were here during part of your proportion to be here on out but i think there's more but now it may be closer to sixty than there was that but i mean i'm not that's not really the point but the point is we the doctor of equipment should be just designed to protect something where someone comes along and copies identical product and just uses a different material mr nystrom invention even though the literal scope is limited it would come from a lot has nothing to do with the materials from which it's made it and he made a choice in the language of this claim nobody forced  reply after we pointed out that it is improper he tries to run away from it the bottom line is he's identified absolutely no authority to this court that supports that point the only case he cites is trans which did involve an express claim limitation that was held to be vitiated it does not hold that you cannot look at the claim construction in fact this court has held any number of times and the cases you cite in our brief are replete with this the decision in case se doesn't have to live with that ok tell me now why you re apply what what would ever make us reapply the same test twice if you don't i don't know that you would reapply the entire equivalence and i don't have to the only way you can tell if there is a missing limitations to see if it's substantially the same as what is claimed well you are and have to reapply the equivalence analysis a second time then it's kind of strange and so you have the doctrine of equivalences by definition a missing limitation because it's substantially it's an insubstantial variation a missing limitation that doesn't cause doctrine is exactly the same thing how do i know which is how much missing is missing well it let me start with the context of this case as opposed to the abstract question first every limitation is one or jenkinson every limitation is material so you have to look at that limitation it cannot be ignored what we know here is that in the prior proceedings we have an admission and yes it relates to race  it's a piece of evidence in the case and it relates to this issue as well we have an admission by mr nystrom in the record this is you cannot i have his if you're asking me to reapply the doctrine of the equivalent to discernment if there you're asking me to find facts on appeal but no your honor i'm not the district court looked at this issue there is absolutely no this is the doctrine of equivalence a factual issue it is a factual issue and you're asking me to  factual findings why are why don't i decide fifty fifty would is as much a word as the as sixty forty would or or seventy third would i mean it's that line drawing again and it's factual and you're going to let me draw the lines on the facts why isn't fifty fifty a wood board as much as sixty forty is a wood board because sawdust is not wood that issue was decided previously by the district court ok but if you can argue and let me make the factual finding you're running a risk archer very well rather i understand we feel that the admission is a piece of evidence in the record and it's already out i agree and it applies with respect to just as much as it applies with respect to race to the cause of this court held previously based on a waiver not american determination that a piece of composite material made of sawdust and recycled plastic waste and extruded is not a wood board close he's probably got an arguable case if it's a chunk of wood cut from a log with a laminate that's formed with the top on it could he get to trial on that perhaps but this isn't close this is sawdust it's been a long time since this composite  the issue is the materiality of only these two limitations just because there's been convexity we did not the spirit that we don't admit these terms but we did not dispute them for purposes of summary judgment since when  it is the claims in the construction that was given the word board had to do with the integrity of a piece of wood as it's cut from a log for two reasons number one in the prior rulings of this court it's a board cut from a log to to make it more efficient the way you cut the woods and get more board out of the log and so that it works in an appropriate direction that minimizes the warpage and distortion of the material sawdust doesn't satisfy that which is why this court previously held is that the product will actually form when you extrude it it will form into a shape if you start getting more and more wood fiber or the sun ulos fiber which is really what this report found that says and that's what it is it's it's so finally divided it no longer has the integrity of a wood board cut from a log if you start increasing that sawdust percentage the bird becomes more and more flaky and doesn't even form into a building material you can't use it for anything so ninety percent at least from what i understand from the record is way beyond the pale seventy percent i don't know but based on my experience with the point i doubt that you can even make a board with that but here we're talking about something that has been is now and always was in the forty to sixty percent range and this court has held that's not it would board cut from a lot mr nice was already litigated this case repeatedly he's now had three judgments he's now had two decisions from this court this will be the third district court that this case should never have even gotten to a full summary judgment proceeding this time because of the race judicata issue we have an admission by this litigant on this record that they can't prove their case whether it's equivalen whether it's literal that admission should be binding and this court in decision and we did not argue this it's not part of the district court's reasoning below but i know the court currently has before it a number of cases they just say you just decide if it is quest a few months ago the shy case is up this issue of race judicata and judicial stoppel is a very live one and this case presents an excellent example to stop wasting the court's time the district court's time and trucks this time and money unrelated  over and over again your honor i would be happiness proceed the rest of my time to the court unless the panel has any questions about any of the other arguments that we've made in our briefs we would stand by all of those and we would request a summary affirm and it's of the district court's decision composite is not the equivalent of one that's not the that's not true at all the tracks one products were different in numerous ways including i'll direct you to a eleven zero six of the appendix where the our expert dr haas explain the process differences that there is in tracks two it's not the same process with the wood grain put on top in order to get the consistency that would come from a log have there were numerous changes done in the production process and the first set forth on eleven of the six that admission interacts war my main point is that admission in tracks one only covered the tracks one products that admission in no way we didn't even know the existence of trucks to deliver that tracks to where the process behind tracks to certainly couldn't admit that something was not an equivalent when it didn't even exist at the time were not here on the tracks one products were here on new tracks two products and i've read your case  carefully as i can i've never seen a case where the material difference is somehow only limited to the particular thing that you lost on the previous case i would read your young engineers in the don't know are avionics cases which no where in those cases that it's those that suggest that the material difference has to somehow be directly related to the thing you lost on with respect to another product so i know that the panel seems to be suggesting that i can't find that anywhere in your case law we believe your case law the main cases people cite for a shooter cotta has to do with whether there is only a difference a material difference in the product well attempt to claim limitation in this case we believe there are numerous changes in the product that are highly material to claim limitations in the first case trax argued that their top was wavy and didn't have a radius of curvature that was their summary judgment m misstatement this court that waiver we accept the waiver but the waiver is limited to the product that we were looking at at the time or our waiver couldn't apply to new products we didn't this this process is different on a process by no means is that the same process other than as you've correctly pointed out it is an extrusion process but one of the cream examples of t even like a bottom configuration which its original products never have this new product implicates claims such as claim eleven and claim fifteen that we couldn't even assert in the original case there are claims in this case that we could couldn't because the products were different all right chris thank you counsel take the appeal under advice thank you