theoretical circumstance hypothetically what if in this case it didn't matter when you got rid of the inventor during the i p r proceedings or what if in getting rid of the inventor stoffel for the changing of the inventor and the subsequent no it would not because the statute is clear it says the arab are meeting and members are naming persons who are not of others shall not invalidate the patent in which such error occurred if it can be corrected you can invalidate for misnaming inventors if you can correct instead there's there's just no limit there's no time limit there's no limit to one correction  and then bring it back in this case to save the patent other reason well there is one limitation that we haven't talked about and that of course that's an equitable conduct if someone deliberately misrepresent something to the p t o there is a remedy for that and that's going to be an equitable conduct of the patent can be declared unenforceable but as long as you have made an error that error can be corrected according to the plain language of  under the current statute the court still has to be able to provide notice to and hear from all the parties concerned lending tree actually dealt with an interesting circumstance where it might not have been possible but that was a case in which there had been a jury verdict didn't identify who the inventors were at was something that the patent owner had waived and the court remanded and said it might be impossible to correct in that circumstance because we don't know how to correct that's not our at least more limited and that here you didn't know there was assumption that this was not a means pos function and it was sort of a change circumstance here with the court and this proceeding suddenly saying this is mean plus function you need to look at the back and find the structure to support that and that's where the necessity of having the inventor and group it's that statement of the case that goes to the st prong of judicial stoppel which is whether there were inconsistent arguments and our position is that we've always argued that mr showalter is not an inventor we just argue that if the district court disagreed then the remedy was correction rather than validation that was a conditional argument in the alternative and in connection with that we pointed out that we weren't arguing inconsistent facts we were arguing inventor ship and that's a legal conclusion based on claim construction which is itself a legal conclusion and that construction changed midway because no one had ever suggested that this term logic to modify was a means by function construction that was an intervening circumstance vanish it is a legal conclusion that depends on underlying facts and underlying legal issues including plain construction a general determine that mr shelter was not an inventor based on a plain language construction which was all that had been asserted to that point cisco had never asserted any kind of means bus function construction this whole idea of the v m proxy it just hadn't come up so that is it's really a mix question of law it's not a fact it is a legal conclusion it's sort of like the end of the supreme court cases disability disability is ultimately a conclusion and then you depend it depends on some underlying facts like could you raise your arm over your head this morning that whether you could raise your arm over your head this morning is a fact inventor ship is a legal conclusion that depends on both historical facts and on claim construction a fact claim constructions it defines the scope of the invention that's how that's why you need to know the claim construction in order to determine whether somebody has substantially contributed to that  and it would be an extremely rare circumstance in which judicial estoppel would not result in an invalidation and let me just give the example it may be far fetched but let's say that a person who result in validation when you can correct we are arguing the plain language of two hundred and fifty six b you cannot invalidate if you can correct if your own not trying to invalidate the patent then that your alternative argument is even even assuming judicial stoppel work should be applied it is not applicable to the circumstances of this case correct so you do have an alternative  invalidate because you can correct in these circumstances if you disagree and say that judicial stoffel could potentially overcome sections of your physics be we argue that the district court legally erred and abused its discretion or generally in applying judicial estoppel on these facts ok let me tell you how many arguments under all three factors of the new hampshire versus maine test in that regard one we talked about a little bit earlier about how it was almost an unforseen or intervening a bench to change the claim construction and get you into means plus function land with that apply if you know we all then a means plus function which you really had arguably no basis for knowing was going to end up being the interpretation in other words people i know at the get go but there are two different standards the p r i and regular claim construction interest in my question not entirely i agree that there could be a broader interpretation a narrow interpretation and censorship based on the difference between what you and they are to monthly and then you get to change it back again when you're not the are right that would be different than your case where you we had no reason to necessarily anticipate the need function analysis is going to be a function construction our only point is that our construction of the plain language construction was certainly reasonable based on everything that had been argue or presented to that date either in the district court or in the pizza patent because one of the venter who worked for general the same company contributed to one limitation that appeared in just half of the claims that's a pretty stunning result especially in light of a statute that says you shall not invalidate when it's correct specifically new construction just look at the finding the district court made and i'll cite three or four st if eighty three dollars at the top the court said it quote does not credit shoulders in the other seven it said this was quote unlikely to qualify as and is a quote unintentional deviation from the truth which means that it was likely to be an intentional truth various factors are almost giving the district court discretion to figure out whether a forty is playing fast and loose with multiple decision makers in the district court with uniquely situated  after quote the defendants raised the issue of judicial stoppel for the st calling the plaintiffs quote filed the bankruptcy the in the bankruptcy court a report of a chapter eleven obligations in which they identified their claims in other words they corrected the unfair advantage securing an unfair advantage is really just circular because the party will will never secure the unfair advantage once they are caught and judicial  function it's a legal question plain construction is a legal question why is not is mr baca tell not correct that this was an unforseen circumstance there was no bad faith it wasn't playing fast and loose they didn't come from the district court advocating function position but this is what the district court concluded and you know it was not an easy call at a multi day trial with respect to these issues so why is construction was an intervening change of circumstances the court would have been well within its discretion to reject the argument for two reasons st if the claim construction or really had been a game changer it would have changed the game the argument depends on the fiction that the inventors critically examined the coins and devised a reasonable approach based upon a particular scene construction but the district court found exactly the opposite these are fact inventor shift when they followed their sworn statements claim construction cannot possibly have played a role in those unformed filings you can't override a equitable determination based on  yes if i may i'd like to respond to several of the points that mr rosenkranz is main st of all he said that there was something improper about a general trying to square behind and that we were seeking unfair advantage the fact of the matter is peter schulter even assuming he was in the inventor he invented before grossman or anyway we've explained that at page six of our reply brief there was no sort of illicit motive generated and to david grozny or no matter what the next thing he relies on is the district court's findings basically it comes down to one paragraph at the end of the district court's decision on inventor ship in which he says he's not crediting the general witness's testimony and he uses the word historical revisionism precipitated by an attempt to swear behind the art i'm not exactly sure what he meant by historical revisionism but you know that's what the request to correct inventor ship is you say you made a mistake in listing the inventors and you're trying to change it that's what the nature of two  is if he was making a factual finding about soldiers contributions we're stuck with that factual finding but i think means that we were mistaken when we concluded that he wasn't an inventor it doesn't mean we aren't entitled to correct the error as the investigation he thought we should have been more fulsome before in bed if you mean investigating before removing mr shoulder well actually mr michael spent a lot of time with other people that he generated lawyers looking at this and you know they determined that all of the steps that were included in the claims had been invented by september th it didn't matter what mr shoulder had done after that because it appeared on september th could reach that issue on remained there were summary judgment motions pending on a lot of issues and this accord denied them without prejudice because it focused on this inventor ship issue and that's what they went to trial on in the space of four weeks over christmas we told here's a new trial you're going to be having on this one issue and that's why we focused on the trial at that time period mr rosenkranz talks about you know equitable stoppel and latches that administrative stoppel could not apply in those circumstances even though it was a common law doctrine that was well established you look at the statute and see whether implicitly or explicitly is inconsistent with the comma doctrine here to the ex cases i think he was speaking about mr manka and whether mr manka relied on a claim construction that's actually in his declaration that appendix to return and he relied on the pla