your three responses just pros other than we already have prosecution trees toppled the other two to me don't seem to be really responsive because they're all focused on the idea of getting the claim construction right because that's what we had in this instance you want to was a boy in construction maybe not understand my question and it's probably not explaining it well so think of it like this suppose the district court says if you i'm going to tell the jury give everything it's plain ordinary meeting unless you raise with me clear it shouldn't be given a plane or a meeting he said my process my house my role i gave you a deadline you didn't abide by it you don't get to make these arguments now they're too late and therefore time mark i'm not going to consider them well that same scenario penalize s the person and the claim construction doesn't end up being correct right the next court would then of course be free to look at it and say oh you know the clinton struction should be treated differently but it's a penalty for the person vs all in case and here we're talking about arguments of a lawyer that were made fifteen years after the fact not talking about a factual position is it doesn't matter that the that trial this sort of came out of left field but i think this court if the facts are essentially undisputed and the interests of the justice are sick this court can take a look at the underlying facts and the underlying their representations that the one four nine was issued based upon this active passive distinction simply wasn't true there was no evidence to support that and that's why the court has stated in its order that the court will assume the  still you are either having the evidence to support if you're going to hear a summary judgment there has to be evidence to support summary judgment and they pointed to the prosecution history which shows a pattern that was allowed in just a series of arguments that were made  under those circumstances he also would be your honor just as if i took a position but if i took a position in that case i think it would be unreasonable if you didn't go there you know and sometimes advocates want to say no to everything so well i don't want to say no i want to be different in this case and that is the difference in my mind then the type of negotiation that you have before the p t o leg up or the board itself once you get to the stage of the board patent feels interferences it's no longer a negotiation it seems much more well to be so you're suggesting that in this case those are the facts i would say yes it does apply here when you look through the plaintiff's maybe three statements about been done in one nine one would be that the transmission required the active participation of the person wearing the bracelet one was that the united one might have been required to cable and one was that the transmission of the nine one nine was not automatic pursuant to the so called second schedule but w only affected when the wearer plugged the cables in now repeatedly or several times certainly throughout prosecution history the examiner agreed with each of those points and even in the notice of allowance identified the  lack of a second schedule in the prior art as being one of the reasons for allowance but the fact is that there was a series of projections based on the nine one one patents plus another reference these arguments were made each time and in each instance the rejection was withdrawn and the examiner had to come up with a new rejection so to suggest that the examiner didn't rely on the arguments just doesn't make any sense you would have withdrawn the objections of the rejection now i would say that it was not a major by any stretch of the imagination an argument being made and certainly it's dispensed with no analysis you know kind of in passing which you know that to take that sentence out of time you know take that sentence and say ok well now as a matter of law we're never going to let it apply i don't think that the pfizer case can be read or this is deciding that issue so grandly especially again if that were some are other argument conflict with or inconsistent with the claim construction or prosecution history of stoppel because there are two different things claimed the structure of course answered the question what is this claim turn me into a person of ordinary skill in the art to debar a concept for real property runs with the parents it has the same meaning or guard of who owns it and regardless of when it's being assessed judicial stoppel protect the integrity of the system by barring parties from changing or anything like that he's not saying as a matter of law to want to skilling the art this is what it means you simply saying you told the patent office one thing i'm not going to let you come into court and say the opposite as far as wasn't raised below and therefore i'm not really the or the really subject of this but i guess i would also say that and the reason that you would bother the prosecution history of stopping is that as the judge this case stops you from going into the trials and saying but the nine one hundred pounds doesn't require you know doesn't require active participation or doesn't require cable but the judge bremer said they were free question on the day i says you've given me a lot to think about at the judicial you think that under judicial suckle it's see quite frankly i mean i'm not thinking about it as thoroughly as you're explaining it judicial from memory and he says what remains there remains a genuine question of fact as to whether the jury could find that wireless transmission be a clue to technology is the equivalent of transmission absence human intervention then why in the world is he going to allow them to do it through doctoral programs while you know what you're saying is i mean if you made a statement to the p t o the dispatch can only be used through human intervention nobody law has its own special unique way of dealing with this it has existed for a million years and been rubber stamped by the supreme court no dozen cases including fastow acknowledged you know and all these cases  we're dealing with a nonfamily of patents we're dealing with statements about a prosecution of what's happening other than the one that seems to right what is a problem i think there are certain difficulties with respect to prosecution histories samples so it almost seems to me like traditional s fault so the question no and just process you and then i think i took you away from a sheep to point that you raise three issues one of which he raised that is an important issue and i really want to hear your response is there is a difference between a judicial tribunal or a conditional like tribunals and  proceedings that occur in social security why should i believe they were taken this far down into administrative process because i think to be protecting the system and i think the policy behind protecting the system from being seen by changing your arguments what i read these things is there is no distinction drawn between how the agency was acting and i assume you would also want to point out that we discordantly lies as a matter of law all the time on this prosecution history in what went down in construing a claim for example we will often as a legal matter construe a claim and rely on the prosecution history so they're treated by ass not as some random statements that we shouldn't construe we data from the modem to the monitoring station and that none send none taught to sending an alert to a supervisor agency over a second communication link this argument about passive it was would have been obvious to combine the system of the one nine one nine with the radio frequency type transmission without the active participation of the subject as taught by cars and were to extend the doctrine of the judicial stoppel and well beyond its normal confines i'm not sure that this is the type of case where clearly we received over the statements inconsistent i one could be the equivalent of the other and i don't know how you how you reconcile that to say that the statements are inconsistent but the dr mcluhan supplies it just doesn't seem to me that that's possible and that's why we ended up  or problems with respect to the trademark and the parties first indicated that that it was such a see on film or would apply and then later changing that position and we were talking about