fine yes it does that we're not arguing that that that appeal was not final i'm not arguing the case that was before the first court what i'm arguing here is whether or not collateral estoppel auto ought to apply in a rule thirty six judgment and broadly and at least in this case if it was if it is to be applied the court misapplied in the collateral is valuable factors and deciding that collateral estoppel applies for does not apply and suppose that instead of a rule thirty six we dish should a short non presidential opinion to senate since one saying the appell argues to claim construction issues we reject his argument period affirmed with would that be sufficient to establish a predicate for collateral stockmen absolutely i don't think there's any question about that i mean that's what the after case is all about what you have  made by the appellant and say we reject those arguments yes that i think that i think that would be a final judgment i think that that collateral estoppel would apply because you would know exactly what are the factors or you could  party makes only two arguments and there's a rule thirty six and those arguments are not independent grounds they're dealing with separate products why isn't that a perfectly equivalent ere are two arguments well what are those two arguments let's be more specific if you say that that one of the arguments is is that the there were three that the claim construction was incorrect and the short statement and say it is the know that's the expectation is basically saying is is is you cannot look at what is in the what was decided when you say that our opinion or our graduates is based on the alternative ground for why there would be no right yes yes that's correct that's correct but the point is is is is whether or not what you have by affirming the lower court and the judgement is you have made a decision with respect to the claim construction and that's and that is where the collateral stuff at issue is in this case it's not whether or not the judgment  to the question is whether or not the claim construction in the original case of is binding in this case were there in our own limitations on each claim that were found not to be satisfied while at that my second argument your honor is has said that there was no adjudication of claim to in in the first case there was no construction of claim to claim to being dependent on that the name i'm not sure that they disagreed with the claim to or not what the court did with it is to say well if claim one is an independent claim and not and  and the the claim construction order applies to claim one the term adjacent in claim one then if claim one with that construction is not infringed then claim to cannot be in fr nothing is done with claim to that there was no construction of claim to right now you can leave for the court in a second case and say claim two was never construed so you're saying that they you said both products are the same right again going to come back to claim one claim one replied of a construction member the spec said that a construction member may be a panel or a block when the court what we have this is in claim one we have a panel in claim to it recites a block a block has two panels we have two different products write it as in many  dependent claims you add limitations and their death if it brings the claim outside of what what was in the original claim in other words claim to was fine before the construction because a claim to said it's a block and claim three said it's a panel and claim one said it's a block or of hands but when the judge construed the prosecution history it it let the judge  amended if you will claim one and then he said and said they didn't agree with what the judge did of course not no but that's the issue that you took to the court of appeals and wants to yes that's that that is true and that's why i'm not so i think you're arguing playing one i'm saying that claim two is a different product and that consequently is the same limitation in claim one that was construed adversely leading to literal inference leading leading to non  literal in print when placed in claim to in the different in the context of this different product requires additional construction and it and that construction is explicit in claim to it says it is this is a panel gives me this is a block the block have two panels there are two rows of projections and recesses again that limitation taken from crane one right and now it says that each of the projection rows are projections and recesses is on one panel and the second is on the other panel that's it and when you reach that conclusion is then you have infringement in this case so it makes all the difference in the world in the prior you had different defendants and you didn't use them infringing complaint and when we got to the that the claim construction the court said because of the way the case had been transferred from the eastern district of texas and the way that they proceed is  limitation and that's not really important here right so what the court below did is is it construed claim one it looked for infringement and found no infringement literal infringement of plain one it found no and we accept that limitation lamentably but we accept that limitation and was properly construed in the first case of that limitation when now we're in you get to the deep end and claim must be construed two claim constructions on appeal were considered by this court this being without legal or you just is there is there because there are two separate claim constructions is it is that different than the first those are all cases with respect to design arounds by the same defendant are they not they don't produce the gun i mean it's one thing to say that there is collateral estop claim construction but quite another to say that there's collateral estoppel as to infringement now i think in this particular case that there is a stipulation that there would be and there would be no infringement if the claim construction stand or alternatively that the lower courts that no reasonable jury could find infringement but i don't think with different parties that you could collaterally a stop and infringement finding as to a different product collateral estoppel with respect to that particular claim limitation but that doesn't necessarily as just another chance that doesn't necessarily mean that's the in the of the case assuming that the product has other features and so forth and there may be some reason that the product either through the dr who quote once or otherwise doesn't being foreclosed from infringement by that claim construction you know i think what matters are the features of the product whether it's made by the same party who are different so i think the question is does that matter because of collateral estoppel or does it matter because the the court would say given that this other product doesn't infringe no reasonable jury could find that this one does  or that you have which i think you have here a stipulation of not infringement assuming the claim construction stands in other words it's one thing for us to say where someone is trying to design around and and they've already been  the features of the products are the same so whether it's made by the party who made the same same product in prior case or a different party what matters is the features so in the first limitation which is within ten percent plus or minus i think it's the way it was initially construed so your position i take it is that that decision of the district court in the first case firm by this court by rule thirty six binding and by collateral stoppel on all subsequent efforts by the plaintiff to sue other parties with regard to other products so the decision as to what the board dimension means is what's binding on the other hand if somebody else comes in with a product that is different in that it's much closer to ten percent or maybe right at the margin of ten percent that binding coming construction might not result in a judgement of non infringing so that other product you have to look at the other product and see if the binding part of the claim construction in stop borrowing that that infringement action right i think that's right yes generally what is  that in this particular case that the claim constructions wouldn't kill their infringement argument because i think they stipulated that it was but i'm saying that whether it's under collateral stopper or some other theory is is in is an important know it hasn't the best you can say is that because they're not sufficiently different or because they're at least not patently different that therefore the court should enter summary judgment or the other side in good faith has to stipulate not infringement but it doesn't mean it's been designing ok that's for the particular part but the issue has been decided the issue is what matters the claim construction issue you're saying has been decided but the issue of infringement is not because the other product may not be for quote by the client construction in the first case even even applying that claim construction that that product may still infringe yes and i would go  and that would be a separate determination the judge would have to go to step two which is that the judge would have to say ok i'm looking at these two products and there is no way that a jury could find that this product it's going to come back to and it's the difference in the products that we're talking about in the difference in the claims of because claiming one as construed applied to a pair of them consequently is this is that the going to agree that the claim construction is correct however is this is that's not binding on the construction of claim to because claimed to but the point simply is if yes if we if we had stipulated that the claim was that perhaps perhaps i confuse you your honor i think we stipulated that that you can't meet don't construe the limitations correctly yes which is the same thing as saying that that that we couldn't that we that we could not or that we must appeal a to infringement but again i'm drawing a distinction so in as much as the claim limitation adjacent was decided in the first case it was decided in the context of eight a panel and what we're saying is is since we now have a different product we're talking about a eight block that the the claim language that is in the in the independent claims must be rican strewed in light of this different product and this different product had to pam and therefore you could have one row on one candle one row on the other whereas in claim one there is only one panel so both rows have to be on the same panel we're saying is is when you get to claim two and you have two panels you have again carrying the limitation at least two rows from claim one into claim to now you can position those two those two  one on one panel one on the other panel and consequently a block which had one row on each candle would infringe claim to but not infringe claim one of course ok thank you