patents with respect to which there are two issues both of which are issues of law the first issue is an issue of claim construction the question is how should the term in the claims top layer be construed  products and not looking at what we were claiming a case was inappropriate it's almost as though it's a good analogy it's like a case where you have an argument for indirect infringement based both on contributory and a do spend the only with the contributory i ha why it's essential to have a ruling on the exhaustion doctors not just because of elpida but because with respect to the other parties we need to be able to determine what part of what portion of what they're trying to import is actually licensed or exhausted and which portion isn't irrespective of the terms of the license yes they would they would be covered but it's our position for many reasons based on many elements of the agreements that there is no exhaustion and by the way this whole argument about determination were certain issues there and they did that they ordered a few of plenty of issues there including issues directly linked to exhaustion such as infringement joshua's a defense to infringement and exhaustion for that reason we certainly understood elpida was not in the case as of the initial determination is belied by the fact that peter was the sole party associated with michael b ga products and the issue of infringement of those products was reviewed and not only reviewed but reversed by the any single point i would want to make this point crystal clear and that is the one zero six patent is a method patent and yet the keystone of test for his argument in both its opening brief and the reply were if it is a structural comparison between the two six five patent a piece of prior art and the chance devices which tells us nothing about the method which they are accusing these devices in fridge and this becomes particularly poignant when you look at the prosecution history of the one o six and this is a round page one twelve seventy five the examiner did exactly the same thing xander said we're going to we're going to see one of the six pack is not going to be allowed because of the two six five arthur corresponding structures tests where his response was corresponding structures don't matter we're going oh man the cleanse to add this critical limitation providing a protect solder it does not protect the terminals from a capsule if there is a huge hole in the center of the solder mass of the accused device it cannot serve that role and test will never take that position and because of that there is no finding about it but they do take the position that the solder mask is a generic phenomenon and as mr hughes point out page twenty one of their brief is that if there is other material in the appendix that supports this is that which controls where the  this core to ignore the very construction of top layer in argued for carries the terminal it grants top layer to include not only that which carries the terminal which has been found to be the substrate core and that's supported by there's a terminal on the bottom of the top layer doesn't answer the question of infringement because a position tester is always taken both has to figure three and figure seven in the two six five is if it's on the top or on the bottom they're still a little protect barrier they they specifically say the two six five does not deal with protective barriers and capsule so it is no figure in the two six five that reveal anything about the method of the one hundred six that's why the repeated packagers which were not licensed oh what they failed to tell the court is that those two packagers only sold products which are accused of infringing the six to seven and the nine seven seven because the record shows that tester received royalty payments for all of it is accused products of these payments are in the record and tesla never disputed receipt of those papers up third your honor your honest accepting tests which argument that the licenses of l p s packagers were conditioned on payment of royalties means that none of them would ever be licensees in good standing this goes back to the points that they are out of the regular earlier because they would always have unlicensed products in the market to be surprising with respect to the ninety seven stuff in the six to seven case because of the possibility of past damages but they are not involved in in this case because the i t c would be limited to an exclusion order for a future exclusion product so  and it specifically described david lightman as having terminals there on the top layer it's directly responsive to arguments that that the police have made that terminals cannot be there on the top layer when they're on the bottom side of the top the two six five was differentiated this is dealt with in our briefs but the argument there was not that there wasn't a top layer it was that there wasn't a top player with exposed terminals at the time capsule ation that's the point of this invention and when you look at something oth a close cropped version of the prosecution history in fact the sentences immediately following what's close cropped in response in the congress upon its briefs explain exactly that i think it's self evident and the commission agreed and explained why they agree with respect to judge like you asked me to think about a particular infringement scenario an application of the claims and i've had a minute to do that the reason why you called me off guard is because it was a reading the claims that i think it's we all agree it wasn't proposed by anyone below there were any  is structurally analogous that's not how the commission did it and i think mr hughes said on in his arguments this is that quote the parties and the commission below agreed that the mold chase was protective barrier and that's that's how we've all been proceeding and so i think it would be it's interesting an think it's an interesting question but one that there's no findings of fact on that none of us had had considered before and we don't think would be appropriate for the court to make that kind of that's a factual determination that's applying the claims as opposed to determining the scope of the claims if if the court wanted to have such a thing considered it would it would probably be appropriate to remain and finally on the exhaustion issue we heard quite a bit about that and what i want to emphasize is that it really is  a very slippery slope here and the ale date is headed quite a ways down it by saying we're not going to give the ordinary meaning of the plain meaning to the part of the contract that said there is no license unless there's payments but it really ignored that and found that sales by check miles of laminate substrate packages resulted in exhaustion as to these defendants so we're not just talking about the terms when there's an authorized sale and when there is not authorize sale based on payment royalties we're talking about field of use provisions and we're going to go that far why stop there why not just disregard everything between the title of the agreement and the signature line it's such a very dangerous precedent and we hope t