right i believe that there is there is evidence that they are substantially identical in the fact that what they are is the all of the information that's in there in light of when you read it in light of the claims of the specification and the understanding of those skilled in the art that information is within the original specification of the of the honor of course the court just report got to have that discretion but in this case the porton even make the analysis with respect to that that issue the court simply said the initial claims were cancelled therefor salmon nation certificate we had contacted the court and asked for a new scheduling order the scheduling order that had been in play obviously was was over and so we had asked the court to set forth a new a new scheduling order if because there are a newly there are newly amended claims that if they if you conclude they are narrower in scope we are still entitled to proceed with the action court to discuss setting additional or modified deadlines and then if you flip to update contentions and expert reports with any associated positional discovery that of additional contentions to say whether or not we should have the right to to amend them and build the dismissal order at which point of course the case was over and in the absence of a scheduling order you didn't have a deadline for filing motions correct case i mean you know they file for summary judgment the district court said you make this assertion about substantially similar and you haven't put up any facts i think your expert report just fell short so if you didn't put out sorry i said i see where what you're pointing to your honor i'm not sure that is that a final decision on the summary judgment issue but certainly that is a statement that the court made in that that decision but the issue with respect refiling is that we're going to be faced with the same exact rights we're facing now the court does not and my expectation is the other side isn't going to agree that all the discovery that was taken in that case for volcanics forward marquand opinion you need to amend your complaint so we're asking i'm just trying to figure out what you are asking that we do that we tell the judge to allow you to amend your complaint do you want us to ensure that you can revisit the question of substantial similarity or decide whether or not that issue has been properly disposed of and is over or what are you willing to agree that that issue at least is overseas you just want us to vacate and remain and for purposes of allowing you to file an amended complaint but no issue that substantial similarities or givens you just proceed prospectively with regard to the new allegation with the new claims ideally we would like the opportunity to look back and argue the substantial identity if that is not acceptable we're certainly are looking to at least have the ability to go back and proceed with amended in billeted contentions based on the new claims and to proceed forward there with the ability to use the continuing all of the discovery and the rulings that have already taken place in that moving to a man's is the most we can do is they consider a motion to him but that the trial court would still have discretion whether to allow that so we could be in exactly the same place and does that how does that it sooner correct all right but then he applied the old scheduling order to the other side to say they can't comment because it's too late i think i disagree with that on a couple of points first but they never asked  and whether when they responded to your potion for summary judgment which they didn't think you could procedurally file they said well if we're going to go forward this jives place allowed to amend our claim because we all know it's the old claims are not presumably notifying the court of the new claims and asking for a scheduling conference notice there was a notice that it required no action by the coordinator but it did in their both say they want to talk about infringement contention and the issue of intervening rights as well it did it did say that t p r filed a motion to strike there again that if they asked for a scheduling conference they didn't then they never asked to them in it seems to be a statement that there was no question i agree that the end that goes to my point your honor that that i never made a request to him and that's really the crux of the issue or at least one of the issues here is that that there was never a request there was never an opportunity for the district court to consider it and and decide that issue one way or the other so why shouldn't we just vacate and  it would make sense to amend this in the district court may conclude that so why why shouldn't we at least give that opportunity well that there because the never never asked for that relief so it's it wasn't it wasn't an largely because they didn't move really well because their original claims were invalid and because they didn't didn't ask the district court to allow them to him in their contingents reexamination and the court found that those new claims were precluded because they were they were subsumed by the original by the claims in the original case right that the court may have made a substantive judgment frenchman contentions so when the judge said they didn't move to amend it really wasn't a complaint that needed to be amended it was only the infringement contentions which were part of their original schedule right at the right so the