on appeal number zero five thirty two twenty seven months in versus department of commerce and appeal zero five thirty three thirty six harleston lawyers that declaration he refused to consider any of the evidence you can tell by the bolo him he seemed to exclude some photographs with marking presented to him and they were part of the record that's exactly my point though then so then when he read they acted the depictions in the computer model drawing in the photograph why shouldn't we construe that as he was rejecting the annotations which are just lawyer argument there aren't actual evidence of i mean but he got it wrong i mean i mean both stay with me why isn't what he rejected simply lawyer argument on paper and they're poor by definition not ev in that he adopted all of suncoast characterizations of the products which were improper they were they were wrong and he didn't draw inferences in favor of the nonmoving the way he should have even if you look at the legally correct claim construction and you cues products in evidence which i understand were delivered to the court yes yesterday it's clear that he but he was wrong so we can completely ignore that my point is that he considered that evidence in relation to the side only if he specifically said i disassembled them and analyze them within days issue says first minute order improperly granted summary judgment on both the procedural grounds and also erroneous because he got the claim construction wrong and even under his so let's assume hypothetically that we reject your argument that there would procedural error and terms the way the tide handled the evidence and you also i've given you a preview talland the initial claim construction to let the film hypothetically that we agree with granting the claim protection of the initial tab for the application of that claim construction to the device and the rank construction of the initial judge is wrong but it's not necessary for us to win on that on appeal ok that's not the important point the new surprise rendered there he says the damn thing means is not arranged primarily in the drums the plane does the plane doesn't say that and that was not one of the terms at issue at markham there were nine terms construed on michel martin theory and all nine of them were resolved in c c l favor idea he was considering and doing a particular term and he did in the first we thought it was going in summary judgment order then why isn't your protection on a motion to reconsider by pointing out that you hadn't previously had the opportunity to present contention about the construction didn't even know it was going to occur now that you see it you think it's wrong here while you're on about exactly what are the problem you seem to be on the spot by surprise in the summary judgment order because it was good that you didn't know he was going to construe then he may but he gave us a chance to contend against that and we did or why doesn't that opportunity here any error in his failure to pre war knew he was going to construe it term that you hadn't put on the list could be construed one he got it role but that's a different matter you sent from the standpoint of adequate notice adequate opportunity to be heard on the point because of his improper procedural rulings he did not credit any of the evidence that we submitted which we just look at the went to what's in the it use products with respect to the damn things with respect to all four limitations of heroes be construed we showed how under the doctrine of equivalence that even under those constructions there were genuine issues of of material fact submitted and because of the authenticity objection that was raised he said that's too conclusory but when you look at the opposition briefs that were submitted in combination with that deck that declaration was very clear that c c said it's too lengthy it's too late you can't keep going to mike at the apple we never one bite at the apple really because of this improper procedural ruling where he essentially discrediting not even reading anything that we're submitting whether it's we're argument or identified trunnions as projections like extensions from the plant there's no change to that that remains the manner in which this judge ultimately tried to be is a projection extending reference but the initial the original device is because there are distinct in other words the devices do not have wound that are distinct components and then the second one he also seems to concede that there result of the drawings that were mislabeled in the photographs and misleading presented by c p s they did not arise and were not identified as an issue during the original claim construction because in the consequently to be specified ition makes clear that there are distinctly identifiable differences between a training and a play all the judge was doing in explaining in his his rule was pointing out work i don't think he ever said that one piece doesn't work if you look at his decision when he says one is not the other they are different and you cannot see the two of the same cloth but the argument was whether they can be distinctly identifiable within the next structure we don't say that you have to have two separate structures that are connected in some fashion you can slow movement last but you must be able to say this is a fly and this is the t it seems to me that that creates at least a genuine if you look back on the board had for the physical devices and you have before you at this point and he examined the physical and the answer to why he felt that there was there were no projections on the interface of both sides of what you mean by projection from that application of a recess trunnion it does not give any examples of research trunnions all it talks about are projection like claiming one does not include the word projection like from your use from you  misleading they were accurate they were inconsistent with the plain instruction that had been made by the court and they were simply wrong now that was the principle really we only need one element to be missing in have to be entirely within the board work or it have to be predominately within the board what he says or you don't and brands as i understand it because you're only part of it does that mean that predominately will be included or is the cl