court agrees and if it does the district court decision that the take one device does not infringe claim one should be reversed that is because the full basis so the district court granted summary judgment whether the finding that the accused all pure take one device lacks at least one we believe all replaceable transfer member given that i have a process question how can you even raise the other limitation and in this appeal because the district court did find it there was no literal infringement right but it denied a summary judgment with respect to d l we so so the district court did not find that that the accused devices didn't practice that limitation so they as you just said the sole basis for the final judgment was the absence of the transfer member's imitation so there's nothing to appeal with respect to the other claim and if the court wishes to reverse and send us back for trial we would be quite satisfied your honor i would suggest that it would be a return to the district court for a potential trial that does not have the adequate basis for trying the case because the district court did reach the wrong conclusion on literal infringement we should go back to trial israel any appeal you can come up here and appeal the grounds for the final judgment and say as long as we're here let's tell the district court that with that with respect to issue it might have made a ruling it might have made or every denial of summary judgment that it might mean we need to go back and tweak all those things so that we don't waste time going back that's nice but we don't have jurisdiction to do that and your honor as i submit that there are underlying questions of fact as to whether the differences are insubstantial as above questions of fact as to the function way result and particularly the french threshold factual question that the district court question of facts to the jury and we face that says exactly that case there are disparate functions to be resolved the districts are properly construed the part of the claim one of which is at least one remov replace will transfer member be considered as at least one transfer member that can be removed from the magazine part of the divide and replace with at least one removal i'm having a little trouble understanding maybe this morning on with a little infringement but the take one device is a disposable baffling device and it no longer keeps a closed system when it's removed right your honor i guess in light of that i'm having a hard time device through a hose into the bag and that sample remains in that closed system until the sample bagus cut off and taken for analysis the part that we're focusing on here is the area and if i could your honor i'd like to refer the court to page two to eight nine of the going to appendix which has photographs of the device it also appears that in the in photograph a the district court did not take issue with whether all the structure of the transfer member was there the only question was removed with filippi of the transfer member and he focused on photographs shows the divided fully assembled photograph the shows the transfer member which is the holder one fifty the bellows shape part one sixty five the self sealing membrane portion one sixty six and the needle one seventy the only thing that happens when the device is complete has completed it entire process of sampling is that this transfer member which is one fifty one sixty five one seventy one sixty six one at the top of the photograph the number at the bottom you see the number one thirty five for the magazine part and this whole area around the needle that goes through the magazine part is the area that is the focus of the removable replaceable transfer member and that is the area that would be would be exposed it is not the closed system is going from those needle all the way back to the sample back now what about the seal though i mean you keep that the entirety and yours trying to say that if it can be disassembled that somehow that constitutes the same thing but don't you have a problem with respect to the the way that you have claimed this the way that it is claimed is that it has a as to whether this court has jurisdiction to resolve what that means but what is happening is that the bellows shape our travels with that needle and it is providing a  for that upper part of the area around the needle so that if any liquid drips off the end of the needle it would not travel upward into that hole or the septum or the self we explained in the district court when it comes to see i'm not following what you're telling me are you basically telling me that the construction is wrong and we should be applying our construction because i infringement argument are you complaining about the claim construction or complaining about the application because i'm complaining about the application of the plant construction the construction of adding and because interiorly form and what the district court did is to refold through under the guise of claims instructions the district court results issues of fact for the jury and i point to p g industries and is it went to the with respect to the limitation of the membrane portion be formed are attached as an end of the bellows for the district court improperly narrowed the construction so there was an initial construction that we considered quite appropriate and what the district  on the inside of a divide and it was at an end which means at an end like at the end of a street which a jury could determine includes this device literally and the district court determined includes a devi that is a limitation that the district court prize is not present upon amendment which is at least one removable replaceable transfer member well originally said at least one transfer memories claim one whereas the transfer no narrowing of the claim in fact if anything that language was broadened to say at least one removeable replaceable transfer member now there are additional bases for findings noted prosecution histor having attempts at needle supported within the holder in other words you've defined very specifically what the transfer member is and it's the lower court concluded that that if that transfer member have to have all of those found was that when the transfer member is removed there's something left behind which the district court contended millet for indicated was part of the seal but in fact transfer member is not the magazine part and so in the device the transfer memories removable from the magazine part and i think what's really important your honor is to look at the plane and recogniz saying everything in the picture is the transfer member except one third but the problem that madeline is the the transfer of member is not a single unit is it it's all the stuff on the left side of the picture plus one sixty six and your i think what's really important looking at the player can you just answer his question there are some additional items that are removed from the magazine part in addition such as the  answer to my question is is that the transfer member has to be all the stuff on the left one fifty one sixty five one seventy plus one sixty six on the right correct your honor how is that a removable transfer number s you have a big device in the new house a removable transfer member that you can take out of it as a single piece of household these different single people because you're on i don't see anything claim one that requires a single piece it has to be remov and recall that in the second part of the claims which is the fastening divide it has a magazine part one thirty five for a movable security of said at least three for at least one transfer member that nowhere says remove all as one piece it says you have to have a device that works it has to have at least one remove and replace with transfer member it has to work it has to transfer medium into an out of the container but it doesn't say when you take it apart and take the transfer member of them by the way the device said in the past you would have to be unscrewed in order to get that trip remember out that device once you take let me ask and i want to go back to the prosecution history stop issue in the just so i understand the record as i understand your argument below in response to the the prosecution history argument that was made by a friend on the other side was that the amendment was not narrowing critter's not listening but you never argued in the alternative that if in fact there was a conclusion by the trial court that the memo was narrowing or limiting that you could rebut the presumption that w course of the fish records determination in this case should be affirmed it's clear from the record that no reasonable fact finder could find that this tape one device that's been accused of infringement infringes under these commitment on the movable replaceable transfer member to start with the removal place will transfer member in the claim is very clear it indicates that there has to be a transfer member the transfer member house to have certain components house to house the holder it has to have a needle and it has to have a seal and the seal is even further refined in terms of what it has to have it has to have a fellowship part which is attached to the holder and has estimable ring portion attached to the bell shaped part so that it is the entire transfer member and then the language that is in the claim says it has to be removable and replaceable so that modifies what the transfer member heist of the i p o is even assuming we agree with you ron on some aspects of the as to what we think a transfer member ed what's my first question is what is your response to the argument on the other side that that disassembly can be the same thing  i think it's incorrect because it's inconsistent with the claim language itself meaning requiring a collective unit a removable replaceable transfer member to then say that actually can just be broken into pieces and we can pick apart and say oh we're  removing it in three four five pieces we've now removed the transfer member since completely inconsistent with the plain language and completely inconsistent with the patent itself meaning the whole patent is talking about the sealed unit this closed unit that has this very specific transfer member and the reason it's a closed system is because what they were inventing or what they said there invented a concept was was this idea that they had a closed system so you could actually take out the transfer member and you're still closed system you're not going to contaminate anything or anybody as a result of taking it out so the notion that you could now disassemble it into a many different pieces and somehow take apart those pieces i think is incorrect i also think that court's ruling in the high tech case back in ninety five also gets to an issue that they've raised which is our product is a fully assembled priest sterilized supposable device meaning it's never intended to be broken apart the way they've done it and like the high tech case where they took screws out of it and said if you take the screws out all of a sudden as endoscope now rotates and so now you infringe we submit that similar to that case we have the problem where they've taken apart the product in a way it's never intended to be used and now broken the pieces and say oh see we can put these pieces together and somehow find a transfer member and i think the district court probably held that when you remove it you make it abundantly clear to the world that you do not have a transfer member and the reason is because you look at it and they have portions of it on one side of their photo where it says we think this is your holder and here's your needle and on the other side of the photo all the way over i don't know one sixty six  say where where a claim could serve more than one function that that's the trial court should be making that determination as i'm and so on at a summary judgment i don't think so your honor i think otherwise if a lot of the rule was applied in that there several different functions and simply by making it difficult to decide what the function is we've created a material fact that you can do a little no i mean i don't i don't interpret them as saying there are a bunch of all turnitin functions what they're saying is that that is broad enough to cover multiple functions a claim and that therefore what the truck or did was important to taste is from the specification in into the claim by limiting the function to one thing i don't think so i think the what actually took a bunch of functions including functions that they seem to suggest that are functions of the removal place will transfer member and the part that they think they most object to is the fact that judge talked about in the context of controlling contamination that's the part that they have the most issues with us now i think the problem with that argument is even their own expert that they cite to and in the record when talking about the  members of the function of the seal is to control contamination and so that is part of the function of the transfer member meaning hopefully if you resist cutting through from beginning to end the whole point of this particular device and the transfer member is to avoid contamination the biggest issue with the prior art was you always have this problem of injecting material into a tank out of a tank and what you need to do something that could avoid the contamination problem by having the sealed unit that allowed you to contamination in the in the the larger vessel but not necessarily once in the in the smaller vessel upon removal i'm not sure i'm not sure hypothetically whether you could have it one way but not both ways meaning the way it's designed is to try to ensure you're not contaminating the vessel but you know many of these products are also used with very dangerous viruses so you would never want to be pulling a needle out that later on that you could be exposing to the environment and the people who are using it that's why when milk were disassembled our device one of our our arguments wasn't what they're doing actually is exactly what the prior art was saying is a big problem with the patents as with the problem is that when you're had a claim that had a transfer member in it but it was a much broader transfer remember the number that they ended up having to amend their claim to get over so there was a rejection over their original claims they turned around and said we will amend the claim we added limitations as to the transfer members and now the transfer member had to have all of those component parts that we've talked about the holder the needle the seal and the seal had to be further limited to include these two ends of the seal the  membrane part so all of that was added into what the transfer member is a transfer member was significantly limited by and then really narrow down to what it initially started that and in addition  application said that as a result of what we've just done by adding in all these limitations we are now allowed over the prior art it didn't make any argument that it's original claims are allowable or that it could distinguish any of the prior  the original plain language it said we now have done what we think we need to do to make these claims allowed by adding in all these limitations to the transfer member and the argument that now that we've done our weird representing to the patent the transfer number so they were explicitly telling the patent office what we've done now is we've modified our transfer member we've made it much narrower we've indicated it's got to be attached to the seal has to be attached to the transfer member that to me seems to be very clear evidence of amendment based the stop will and argument based to stop all both because of a high it all directly to the fact that they needed to do this to get around the choir are so i submit that i don't think that there's much grounds argue that this wouldn't create a very clear presumption of a stop oh and below the only argument that they made was that they didn't now or the plane and i think that this record clearly shows that the claim was narrow and without thank you thank you the take one device performs every object that was full looked to by the district court in the patent it does prevent contamination of the environment it does prevent contamination of in operation it prevent contamination from of the it prevents any it allows for independent operation of the transfer member it is just removing all replaceable transfer member therefore the focusing on that limitation and that limitation alone there was no amendment in addition there is nothing in the claim that requires contamination prevention at all so my friend focus on that is not related to the issue of prosecution history circles all that was done was to change it from a remove removal transfer member for replacement after you