would please the court as this court noted in its prior decision in this action the remained of the district court was solely for the purpose of construing the term electrode and any subsequent proceeding that might be necessary once the court construes that term the parties agree that the electrode term should be limited to a micro lecture road and the intrinsic evidence and plain meaning of the term microelectronics stands up to one thousand microns that's fully supported by the inherent meaning of the term microelectro ation they made an error of law by accepting a prefer a body meant as a positive limitation into the claim specifically that the one hundred micron limitation that you want arguing you were arguing for an entirely new and different claim construction on the consider the my original my argument was consistent in the fact that the claims can not be limited to one hundred microns your honor the claim construction from the very outset argued that the that the examples three to five for instance this closure of of examples three to five one four six patent which includes electrodes of three hundred five hundred thousand migrants have to be within the scope of the cla entirely different argument right now you may say the result at the to the same place i can kind of see that into what you're saying but the analysis and the reference is this entire deca for your honor the first of all we relied  examples three to five with respect to the one four six patent we relied on the intrinsic evidence the disclosure of of the with the excalibur report for instance which shows examples three to five those same configurations are my correct roads in the context of in the context of the of the claims and specification we as far as we were concerned is first rush would submit that the claims from the very get go cannot be limited to the one hundred micro your argument in a different claim construction now for us then you did it more correct the issue other than ye collector other than that you are making a different claim construction argument for us and we did it more i think that the only difference is whether we accept the disavowal of the claims to microelectronic originally if it is correct we did not agree that that constituted to disavow all the references in the in the prosecution history but reconsideration we accepted the provision that that the claims would be limited to microelectro claims would be limited to one hundred microns and that disclosures of examples three to five would be read out of the claims as mike as macro electrodes and that's what we cited was improper that you from the from the see that it was operating under the assumption that the hundred was the limit right from micro what we what we had said was said under defend its proposed construction the term micro electrode would be abt the at the claimed construction hearing what we were arguing was in the context of defendant's proposed claim construction these disclose structures and the specification of one four six pat off from micro and macro is one hundred yes and that was based on defendant's proposed construction that that was their argument we were we were countering that you didn't come out and i said what alternative i mean you accepted that the purposes of your own claim construction in propose an alternat issued originally to thousands of the issue of course is that the district court focused on remand focused on a specific portion of a single sentence of the detailed description from the so called definition passage defendant so called definition passage and they've and the district court found this is an especial situation that it seems and it might be characterizing a micro where the disclosure is explicitly states that that one hundred microns is simply prefer you get to column four in the so called definition passage first of all that definition passage starts out by pointing out that micro lecture is distinguished from other electrodes generally are understood in the electronic biosensor arts that is not a disclosure under the most tech or the  is reviewed under yet under certain abuse of discretion but an error of law itself is reviewed to nov and if the district court under the third circuit precedent in the terrace case that  cited by defendants for example is a perfect example of it it specifically says that where there is an error of law which is reviewed de novo then that is that is inherently an abuse of discretion so the question for this court is and you lose then it gets to be yellow that's your friends thing and then you can you can come up reconsideration and say no it's all wrong it's red is is that is that a proper request for  consideration well this isn't that example your honor this is just answer my question for that would not be a pretty so it's because this wasn't read wasn't something that either party advocated before the district court this is an we went to ride because green should have been the right answer you can't come up with something new and different how was this case different with this is different your honor because it's not just a question of whether it's yellow or green it's  this is a two step process we argued it shouldn't be limited to microelectronics at all and the district court and the district court limited to micro lectures and we said even if that's true even if that's true then  describing the scope of these claims given the disclosure in the specification so we it's true we were arguing against microelectronic originally but the from the very get go our argument was these claims based on the intrinsic evidence have to encompass examples three to five have to encompass the disclosures in the it in the excalibur report the intrinsic evidence in both of these applications or the would focus on the claim constructions and that i will focus on the procedural issues which the previous argument has primarily addressed on the procedural issues there are two independent procedural reasons that this court should affirm the district court first the district court did not abuse its discretion to control its cases and in particular to reject moving target arguments by denying the reconsideration motion in which wrote raised its present claim construction for the very first time and second roche's failure in the first appeal to challenge judge foreign ins denial of reconsideration waived that challenge and that waiver in the first appeal applies to subsequent appeals under this then your friends reincarnation on the motion for reconsideration sort of be in the same ballpark would it not i'm not sure i understand your honor if the original malcolm and headed had focused labels and they had just used the numbers we're saying it's one hundred or less they're saying the five hundred or more would with that we cast your view of what they were seeking and the consideration yes it would change their view of what they were seeking and reconsideration because then reconsideration if they were saying that the the original limit was one hundred microns for the claims and were there saying it was not and we were arguing that it was originally that argument was the same on focusing on the same hundred micron limit regardless of the label we wouldn't be in this position but the position that we're in and the answer that the court was trying to get from mr drudge is is made theory  clear by the arguments that he made in the motion for reconsideration if we go to volume one of the appendix approaches ten when attendance seven fifty nine and seven sixty four to crystal he's addressing on this page examples three four and five which is mr fact he will address is not part of the common specification but he's addressing those examples he says all of which are substantially larger than the fifteen one hundred microns that defendants w like the term electrode to be limited to in this case ten five and three times larger than the mat maximum scope and these indisputably are not micro electrodes and then on the next page he goes to address the examples in the excalibur report and he said these two are directed to electrodes having among other wits a thousand microns five hundred micro three hundred microns again substantially larger than the dimensions the defendants would like to limit these claims to and clearly he says macro electrodes  the judge andrews do throughout his opinion he analyzed that and he said that on reconsideration this is page appendix one point seven roche move for consideration positing a different claim construction theory than the wanted previously advanced and page one point eight roche asserted that michael electrodes are up to approximately one hundred microns while on page one point nine months move for reconsideration not seeking to re argue that the asserted claims read only on micro electrodes but arguing that micro electrodes may have woods up to a thousand  microns and then at page one point one three wrote argued a position in the claim construction hearing that it is subsequently partially abandoned so the district court recognize this a new position and the district court has that discretion to reject this kind of moving target argument and it didn't abuse its discretion in doing so the district court in this regard it didn't air applying the third circuit reconsideration standard this court's goldenbridge made that clear and this court building rich case also made it clear that district court does not abused its discretion in denying that reconsideration and they've also give new evidence here but they haven't done with this court required that they do with the delaware valley flurry opinion which has come forth and show why that's really new evidence that in fact judge andrews made a finding that it wasn't new evidence and so then the question comes from roche is this issue really properly before this court and our position is absolutely it's properly before the court judge andrews believe it was properly through the court he went through and he parked very carefully this court's opinion and what he decided was that the mandate did not are him from considering this procedural issue and that's clear under this court's case law it's like the later in case what mr drug just said was that the court's opinion was very clear  the court's mandate was very narrowly limited well the mandate said to vacate and remap the court's opinion said to consider those questions who's decided to claim construction and the subsequent proceedings it's just this per when it really meant it to judge andrews he recognized that there were preliminary issues and that issue was an issue that the court did not express lee decide and did not decide by necessary implication therefore it was not precluded by the mandate and also it was not the way ved by the apple leaves this court case law is very clear that waiver in that first appeal was by appellan appeal up in the first appeal and they focus on the sort of the claim construction they did not challenge judge barnes denial of reconsideration so it's pretty clear under this court's case that way that's right and it's two independent procedural reasons why the district court should be affirmed first because they waived in the first appeal and that waiver applies here but s because their motion for reconsideration was improper and judge foreign it did not abuse his discretion in denying that motion for reconsideration because it was improper and judge andrews very carefully went through that and explained why that motion for reconsideration was properly denied he based his decision and that the first half of his opinion was devoted to that and this court should affirm because there was no abus an explicit concession i don't believe there was anything more than was on those pages i think that's that's all i'm aware of who came up with this i mean did something was there any debate about accepting this definition of micro versus it wasn't important to them at the time and so they accepted that micro was limited to one hundred and then they only flipped after judge farmer ruled against them and said that no electronic means just micro and then of course they knew about the infringing  allegedly infringing product so they need to expand that to a sow's and to capture them but under their original definition they thought they could capture the products and that's why they did the flip flop but originally this was not an issue and it w an issue before judge farmer but the inventor will say he also testified that example three four five which is their only specifications support for their claim construction that those are macro electrodes and in fact you also testified that their product which is called the veba and that's two hundred fifty five microns is a macro electrode so it was very clear throughout the course of this case and i've been on this case from the very beginning and i was at the martin hearing it's very clear from the beginning of the case right through the martin hearing that micro considered one hundred or less and macro was above that and it's only because they need to to to still try to capture us in infringement that they change their position but all of the evidence in this case points the what the original intent was in your original understanding of farnan denied it because it was a new position and as judge andrew points out you know reconsideration motion is not is not a basis for you know take taken another shot at a claim construction when you're unhappy with the result it's hard though i mean every case is different and some of these cases are more complicated and i mean it could be maybe in your experience have you seen persons in the position of your friend that have argued alternative claim constructions i've seen alternative but not completely contrary this is this is a complete well it's if but if you were there in the first instance new said we think electrodes covers micro or macro but if the district court if you happen to can buy the other guy's argument and thinks that it only covers gore your honor no absolutely not but what would i if i'm in a district court do a complete flip flop on my position and take you know one day say it's white and the next they say it's black no i wouldn't do that i've seen people tweak this is a hard sale change and not only that but it goes against their own admissions and the inventor's impressions ok and so this is a lot different than other circumstances or a rolling claim construction maybe you get the trial and the judge thinks so don't  get that right right so let's we get this is this is this is a whole different scenario all different scenario now i want to point out a couple things and time is short and the things i want to point are things that i think that we've mentioned have not i think received the emphasis that they should and that's this issue of common specification and my friend across the aisle here has used the term and everybody uses it but what does that mean it does not include examples three four and five it includes what's in the one four seven patent and in the provisional they added these examples three four and five into the one forty six patent and under the center gamma case they should even be relevant in deciding what the claim term means three four and five should be out altogether now if you look at the comments back there's a definition in it's all about micro latrobe and what it teaches is you're one hundred or less you get the benefits of the invention at one hundred less of the common spec and so i think it's a matter of law you can exclude examples three four and five from your consideration of what the intrinsic evidence is here because it's not the comments back we agreed that the term electro chip you'd find the same because if you look at them they were not done in blood and the claims are limited they were also done with a capillary depth of sixty two microns the patents specifically teachers in column eighteen of the one forty enters into that yes channel that's right and if the channels too narrow because blood is this is more viscous and say water because the cells and so forth it's going to go a lot slower so if the whole point your patent is a fast response time fast detection time things just as is just a speed because it's viscous you don't get enough blood into the into the reaction area fast enough because it just takes too long ago then that really narrow channel just a physical thing as far as i understand but the other thing too that i want to point out which is one thing that i don't think received a lot of attention but it's good but it's a very important point if you look at the prosecution history they actually distinguished prior art that was not blood it was sailing sailing glucose or anything else and that's an important point they shouldn't be able to argue in distinguish prior art by saying that well a lot and or more blood is a lot different than serum or glucose and then at the same time now argue that well you can just take examples three four and five and you can just run and blot ok the fact is they didn't run in the blood they ran a bit of very shallow capillary doubt that's what they did they threw these examples into the patent after they saw the competitive products and so that is not a proper way to think last time judge bryson asked mr drops a question on this that's not a proper way to expand the scope of a claim have to you've seen your competitor's product and that's exactly what happened and so when you're going through the patent office they had one view and a great point for the federal circuit and i actually think you might have a point in this in the prior appeal the district this in the prior appeal this court found that quote noble and life skinned do not for the purpose of construing the term electrode it in any subsequent proceeding that might be necessary once the court construes the term and the district court found an remain and the defendants provided citations don't provide any argument at all about reconsideration being procedurally improper in a prior appeal in specifically the district court found in a one point one four that i do not see any evidence the defendants but the federal circuit  notice the defendants were arguing that the federal circuit should affirm the claim destruction on the basis of a waiver argument that is itself a waiver by defense with respect to  the further proceedings the this is this court allowed the district court to agree mantid to decide whether to what extent each party should be allowed to supplement the record the district court allowed the parties quote to supplement the record as they saw fit and quote that's at a one point one five and even a remain and defendants never objected to any of this additional evidence or issues that they themselves argued only in reconsideration such as this enablement argument that that the parties have been addressing and to fill time argument etc all things raised by the first time by the defendants and reconsideration that were addressed by this court in a prior appeal and ind they were providing additional evidence regarding the existing arguments this fast fast feel arguments and cetera and pointing out how for example fast bill is a relevant to the claim something that we argue and reconsideration taken place and it's only after that time where the ten second test time the take occurs and it's that time frame which is within the scope of the claims this festal argument based on rage of a medical it's etc isn't it doesn't really in any way to the claim to some better law and that is enough for examples three four five disavowed by my room no examples three four five were never disavowed and this isn't distinct contrast to the honeywell case where the specifications specifically demeaned a particular embodiments there is the examples three four five are described as an audience of the invention specifically if you look at the column for is three through five the they describe figure nine which is the box for collector zero as used in example three as being a quote alternative embodiment of the invention and it's that is just one example again that of the distinctions between this case and a case like honeywell or others where the specification specifically demeaning or there is a specific disclaimer in the specification of a up to cua configuration i with respect to the will see and it will see deposition testimony the will the deposition testimony first of all took place in a different case before the pads have ever had ever even issued will see was pulled out was was being deposed with respect to theoretically a different patent and was asked a number of questions he was directed to a couple of lines of the of the specification here and asked to construe based on those couple of lines well what would or would not possibly fall within the scope of micro or macro electrode if you look at his testimony if you look at the search testimony it said in the beads you'll find that it doesn't support the kind of admission and it's the very reason why this court found in the past that it for instance that