and in those circumstances under a blip in god or if the jury had found that there was infringement under the credits that would have been the end of it so it's possible here but did you check to the district courts jury instructions all of that premised on whether or not it's properly before it's a few waves your opportunity to object and the district court had speculative at the time and so we did it we hope we retained it under a cloud didn't we re said ok you can do it but it doesn't make much sense will you that's correct your honor and  i doubt you're going to have much use for that much you can tell us why an erroneous jury instruction is not grounds for a new trial i don't think we're going to need to look at pictures very much a finding of obviousness that you had to meet that if you g d s them test is nothing more than a requirement that you have evidence from before the time of invention which is according to the statute then the instruction is entirely correct in that case it was being argued that that instruction was erroneous and this court said that the objection to stretching just like the objection in this case came for the first time on appeal and the stander is the plain air standard under fifth circuit law and you look at the entire record to see it kurian struction was probably responsible for interrupting verdict leading to substantial injustice so just as in that case where the jury verdict was upheld we believe that it should be in this case also in this case was the law correct at the time judge gave the instruction reading that in the jury instruction house that correct their gyptian god that is the only part of the instruction that is not correct rather big partisan since the whole thrust of egyptian goddess was to get rid of the point of novelty pass and suddenly this says it has to be satisfied that's wrong right that that is that is wrong but if you step back and look at the jury instruction as a whole the jury was have found no infringement without considering the point of not only yes for the five forty six group in this case i believe once again it's important to look at the plane they are standard and that is looking at the record and particularly the record for the five forty six at can you say that that jury instruction was probably responsible now conducted looking at the prior art here we have undisputed facts about the very close temple pool prior art and we have the undisputed facts of looking at soft rules statements in the file history not during litigation by either party but in the file history at the patent office as to the differences between the very close to cool prior art and what they have in their pat rights looking at those differences in the prosecution history is is what we can use to apply a gypsy got us to the facts of this looked at the same facts and while they used a different analysis they still looked at the prior art in applying the prior art in the ordinary observer test found no infringement here in addition to the so now you want to change the context sounds like you want to new trial what he said is the ordinary observer test apply and we imprint under the ordinary observer test now you want to go back and explain that sounds like you want to new trial to do it no we do not but just to make sure i'm clear on the eight one seven there was no concession about the ordinary observer test in view of the prior art we believe that just as this going to be the same and we believe that particularly for the five forty six patent and i will go through some of the drawings here a segment that is the same but to be clear be it the old ord protest and you had the whole point of novelty test the old were observer test did not have any consideration of the prior art now you do have consideration for our work and that's the part of the point of novelty test that is now collapsed into the new ordinary observer test in your closing argument on the seventeen year said it includes the ordinary observer test which we've told you we don't contest so you didn't contest the ordinary of your protest we did not contest the ordinary observer test when you were not including priority you didn't make that distinction did you at the time know because at that point the jury instruction so you need a new trial too don't you because you made a concession which would cost you an infringement verdict but you say well the law has changed we want consideration under the new law well we can give you that or give you a new trial it doesn't sound like you can explain your concession otherwise without it taking into consideration the new law i think that that is correct but i think that it's important also to break apart the what do you want us to take from me re certainly can't make any factual findings we can't even be ordinary observers were not in the position of finding facts so what do you wish us to do by meth to review then we could go into that but there hasn't been any decisions made on that has there there there was a denial of our judgment as a matter of the wall at the lower courts and that's one basis on which we our brief that when an issue such as this is fully briefed by both parties that the court can consider it looking at i'm just have you got a cross appeal here i mean i'm trying to figure out i'm help me out you're saying if there was a denial of some motion you made and i'm not aware that i'm reviewing that right as a as a defense to the appeal brought by i saw fool we are raising as a defense the arguments presented in our g m a well which are corporate or summary judgment motions before us are whether or not that requires a new trial or whether or not there's a waiver those are there any issues beyond there those are the only issues stated to  us the issues that we stated in our brief being raised as defenses to the appeal raised by software will raise the issues of applying got us the new ordinary observer test based on the clear prosecution history independent from egyptian goddess so regardless of anyone's positions or views on egyptian goddess the law prosecution disclaimer that is a pattern you cannot argue one thing at the patent office and then argue something different during litigation applies in this case and on that independent basis based on the close temple pool prior based on the representations made at the patent office that verdict just as as this verdict when you look at the plane your scanner can't be sustained looking just at the prosecution disclaimer the second question as i understand it is that your make a finding on that one prosecution disclaimer not specifically but it was you