these sunglasses because you're arguing in this case which you didn't argue in the first that they are under the second frame and not under the first one is that your theory or new theory in this case  case we concluded that the song glasses whether they're primary first second or auxiliary do the the limitation of requiring that they have a retaining  added glasses if the theory you're arguing here has been a spaz and prevailed in the first case the result would have been completely different right it certainly would have been different however he actually so you're here you've got the same product implicitly or explicitly it seems to me that by deciding the first case this court already decided that the adding changing and eleven rising all based on or by stipulation or by inadvertence on behalf of the party and that doesn't mean they were actually litigated for purposes of collaterals what i think the difference here is clearly in the first case we concluded that a primary flame including two retaining mechanisms required that there be yes and a and we and we therefore concluded that since the sunglasses did not have grams there was no infringement of this position because the primary framed glasses that's what i'm saying the primary bra and nobody in the first cage litigated was a primary frame is nobody really good with the delivery frame as the issue was so now you're making an argument that was not now you're coming and saying wait a minute even if you respect to some glasses of some lasses indeed are not a primary frame we did it for one of two reasons either because we thought they were a primary frame or because the requirements we read that the requirement of retaining mechanisms case and we reached the decision we didn't alter the way we were you know collateral to stop the cause in addition big and in addition to that we're dealing with substantially stop arguing what could have been brought up might have been brought is not collateral estoppel is what was and primary brain was not actually very good actually with any and the claim on its face shows that the sunglasses don't have to have room incorrect and so this court does not look at whether it was a correct decision earning incorrect decision how does that apply here are you saying that they are new what they're saying is under that's as far as a district court needs to go under one if they come up after the fact and they sat on my cot we didn't before we got a good argument that retaining mechanisms only apply exclusively to the satisfied with it you have an opportunity to appeal to the u s supreme court those are the medals except going back to the four factors which you were just telling us about on the eleventh circuit after dinner and those factors don't seem to on didn't have the retaining mechanisms so now to know this court's holding and what about the accused product was not infringing and that's as far as you need to go you know look at what arguments they might have argument that they could have raised was actually the gate it is not the test you know they get you can always raise new instruction arguments and look at the public policy implications of  allowing them to raise new arguments you go through this whole expensive process you come up with a judgment you tell the public that this is not infringing because it doesn't have a written ones and then they come  violent other lawsuit well i've come up with a new argument to try to really argue it and then the very laws do not come up with a new argument again so what i'm telling you that the public and the rest of the industry what you told the public and the