is one or two or more separate causes of action in this case and by demonstrating that there is more than one defeating the notion that the case to be decided on a plane splitting basis there is more than believe had been breached and you decided well i'm the one so clear i'm just going to go with that one and you get the judgment could you then sue on that same contract later i don't think so your honor i think again it says that and i'll explain i is the same claim analysis as a transaction else and that in turn according to the restatement of judgment says you have to look at the nucleus of the task so in order to answer your question definitively i'd have to know what are the two of portions with the questions are the design of the function that it performs are all of our all of them in the case of the apparatus claims are all of the of elements of the plane found in this machine if i the method being performed by other customers of elected and other words is we have a different part which is one of the fact that has to be considered whether or not you have different called back but if i may come back analogy to judge of malice question the plaintiffs comes in and says well i have apparatus claims and i have method claims i'm going to go with the apparatus claims and i'm going to dismiss them the method claims shoes and loses on the apparatus claims and then says well i think i had my pocket picked i'm going to bring another suit and brings another suit on the method claims against the same single device against the have the same machines and you have the same art run so when you go to do the student to approve the method claim is you do have a different set of facts that you have to prove i mean did in my example i mean you had you may have had to prove that the if you were talking about using for example you might have to prove that the person who made the machine and sold it to others induced others to use it in a particular way but still with respect to the first party you'd be for close would you not you couldn't come in with a new theory of of method claims as opposed to  in a certain way that infringed on the apparatus claims that the although the machine is capable of practicing the method it may now and i think that's just a case here in this machine is sort of the hospitals we don't know whether the hospital at this point we don't know whether the hospital could actually using each of the steps in this car to sit again and again is in negative claims you must prove that every step of the method is actually  prove you can do so and so we gave it out of what relevance to your argument is that it is your contention that the method claims are actually broader than the system claims well the men in this particular case yes well of course  digital it came up to this court and this court said no there is insufficient leanings between the correspondence structure to the specification so that elements of the claim and consequently the claim only says you have without prejudice the right to bring this suit at a later point in time now if you had never brought them right before when you said the court segregated you it was your option which the court blessed by entering the right you decided to set these claims that in other words if in the course of your investigation pre filing you discovered that you didn't really have the evidence on the map to claim so you just didn't file you think that would be a me of infringing your patent and we go to judgment in a cage and the judgment is that the accused which is still infringe for whatever  but but how about if the plaintiff loses can you then come back i think the answer is no no ok even if it's actually different different devices in the sense that those devices were in existence but they're carbon copies in any number of cases and that's the case law that lower courts attempting to and do have do you think that that you would be for close from bringing the second lawsuit even though the devices the individual devices weren't made at the digital and digital to digital so i think that there's a significant difference between those two positive actions because in one case is that the claims float was narrower when in this case  the cases young fosters alcohol we're all dealing with subsequent conduct almost and often said the issue is whether the subsequent conduct is the products if they so one product was found not to in french and to the extent that there is no meaningful difference in their products it the conclusion later is that you can continue to make that product cannot come back later and sue again with respect to the same devices of the same design same type when you say the same devices it gets confusing as to whether we're talking about devices that were in existence before the first judgment versus devices that were made later but are in the same design let's just say the same design does devices right so your argument is therefore closed but that i think you'd agree under lawson and brian the of other standard claim preclusion cases that's not the general rule for example if every spring you you have a land with a lake on it every spring you open the gate to the lake and fl initial suit is for a a one trespass that they simply like taking the take the entire value of your land and you're suing for that remedy for all the time and you lose you can come back but if your suit is for the particular flooding that what we've been talking about is more a principle or and what you're urging upon the court is more a principle of patent law than it is a general principle of claim preclusion or perhaps put away put another way is that there is i i'm wondering whether the focus of this is this is intentional or is that where the court focused on the notion that what you have won by winning a lawsuit as the accused infringe a trade right a trade right to continue to sell made or use a device of this design as opposed to protection for the conduct the general rule of claim preclusion is at least i did not go into the need to think so correct as a statement of the general principle i'm wondering if there's an exception in a certain class of cases into  which infringement patent infringement cases fall where we're focused more on the particular right that is obtained as a result of the first litigation which is a right to continue  one of the issues right now is judges regularly are requiring the parties to choose which claims to know pursue the trial and are we inviting that alisa's to later conduct or maybe even this to the prior conduct they can bring in the lawsuit on the other claims a patent reflects well we have all have our address whether or not it's a matter to process you can prevent someone from from ultimately asserting a claim this is true but when you look at the basic rules you're asking does it seem to be an exception to the rule if you looked at the basic rules and suggested from the ninth circuit application those rules would result in the same rate as i think the result we're asking for i think it does require aspect says that as as it relates to the products that were before the court and that were subject to the judgment or those that are not meaningfully different than claimed clinton would prevent you i'm said they could come in the very next day if they came in the next day after the judgement and tried to assert that the claim then then raced you to carter would have barred them from asserting any infringement of the method claim prior to the date of the judgment so it's not really an end run because they would have lost the ability to go back but only if the injunction just spectators gets reinstated because now they're seeking an injunction under the do you think it makes a difference whether injunctive relief was sought in the first case in this general kind of setting i don't think lawlor's hundreds of now like i just wondered if there's any makes a throwaway statement that it doesn't matter in this