before the cord low is where is the base of the collar where is the base of the electrodes in relation to the collar now in most cases i would say the question for this court were where is the ceiling of this court room or where is the floor of this court room  very simple sealing is up there floors down here is equally clear and simple i believe in this case as well as we disposed if we look at the figures in the actual path and the specifically figures base of the electrodes we say that the is how the claim should be interpreted that is where the electro big should be were shown in figures seven eight nine and is where it is described in the pa upper surface is what they refer to as reference plane a reference line thirty two the same hard thing about using why i understand it which is probably true the district court is that little patrician above lie upon which  is still part of the single mostly inside surface and how is it not it still molded plastic there's no electrode expose there it's still hard to see inside fully enclosed case and i believe that was in fact part of the district board's error the district board said that the inside surface of the portion of the housing that faces for the animal in use this record said well ok here is the housing this is part of the is that interpretation of inside surface conflicts with what the patent itself actually says about the inside surface namely pens and the inside surface faces toward the animal in use and is designed to contact the skin of who said judge no we agree with your analysis as far as the wind power it leaves out the pertinent part that need to be inside surface and not only has to be part of the housing and has to be a part of the housing the contents the animal skin during years and then pressure off the dog's neck this out right now exactly i'm trying to understand why that would be any different depending on which line we are i draw the line as you have  a structure here is a portion of the inside surface this is what supports the skin the dog's neck these are be electrodes and this design obtains benefits that my client invented so we're saying basically enough to come within the scope of the claim the idea is that you will restrict how far the electrodes kemper true to the dog's neck have to go in some distance if you make these distances too short that in the collar will not be effective if you make it too long then you run into problems of the breed in the dog's skin and causing problems there the hand some of the later claims in the pathway go into a lot of dimensional analysis about how far these various points ha what you're saying is the high point services namely the uni and therefore can't infringe period and i agree with that analysis to the extent it goes if in fact the electoral base is properly set x as s exactly what the issue is we're saying the r s are pretty sure the of the of the language is the housing and down here the the electrode is as upwardly protruding structure in its entirety and the base of that inside service and look at number five that inside service to get if you're to use it right beneath the electrode and you see it there you know so so remember you said no no inside certain has to come in contact with the dog skin and that what these terms mean can you give us a real quick  questioning the application of the stopper with respect to the one for patent in so far as in the tech is concerned and say ok that happened a long time ago we don't have a good excuse for that the court said that there is a stop all that has to be one for patent with respect in attack w simply by buying a company than any of samples that tends to the predecessor company may also be enjoyed by the later company i don't believe discord as ever confronted that issue or again think we have to i think there lies clear they write back a little bit and the next thing you know they're off to court with a declaratory judgment action and that's why we're here so in his own mind he had no reason to put radio systems together with in effect and by radio systems own admission radio in circumstances requiring action radio systems did not see any action or inaction of a mr lawlor therefore cannot a detrimental rely and getting back to the legal question of well even if well i've i would defend the claim construction of who would like we do have a situation where in order to find infringement you would have to construe the claims to require that the electric bass is part of the house but that's not what what the court did is in applying its claim construction in its claim that construction followed that line that the inside surfaces collar looked at the fuse device and decided that the electrode base was in fact part of the electrode and that the inside services where that electrode base engages the inside sir and when you look at where the electrode engages the inside surface it is above all other portions of the collar so it was a proper application of the of a proper pla exist the question is not whether they gave that up by not suing on it before they got it we all know that they can't sue on itself i have the question is did they preserve their right to sue on it under the circumstances of this case in earlier precedent in the james very case of really there was some indication are no there was acrimony there was some because they don't have a property right yet so you would like us to create a rule that says they have to do something you know reserve a place in my unborn child at your school and it doesn't it child doesn't exist to me how are we supposed to force some sort of preservation drew upon them when they don't have a property right but i think we've seen this and in other precedents where a party for example seeks the reissue on a patent he's already sent a percent totally different claims so the claims scope is different different inventions invented aspects were claimed so how could he when he said ok i'm not going to sue you on that no one for how could that be construed misleading you into and i'm not going to sue you on this separate patent which is directed to different aspects of an invention it was directed to different aspects of the same invention but it was targeted at the older smart device and you essential it render a stop will irrelevant does it make a difference such as in this case were the always going to patent was issued as a result of a continuation or process i think it is significant that it's a continuation in part but it's more significant that it was an effort to get around our april twenty nine letter that says we've got a prior art that kills your one for pat apply and that's the end of the well if we are taking the position that we don't infringe and we are taking the position this later about is invalid for various reasons but you know we are stuck with where the court came out and that is a ruling that assad will extends to the right to have so we have other defenses we have all your arguments thank you you know in this case it's not even like they actually when i give you my hypothetical of they said you know i won't see you in that they actually never told you anything affirmative we're not going to sue you it was silent they sent a cease and desist letter you said well goodness we've gotten the part that might invalidate your claim and then there was silence and you construe the and different claims that you're good prior art i think you see the problem i'm having the problem having is they didn't say we're going to do you made such a good case for not infringement we're going to walk away and we knew your case was really free wasn't it wasn't your editorial really presenting them with prior art and saying well goodness we don't think this is a crane that will ever balls topple the way i see it is to prevent someone from asserting that claim later on that they should have brought said talked about the minimum right i'm not going to sue you right now because it turns out you're making at the minimum amount of the product so i'm not going to see you right now that is not a promise that i will never see you if your circumstance the april twenty ninth two thousand bible either that the issue is not over then that it was all but it but it was over how could it not be over they didn't have a property right they could assert against you so was over at that point in time but then they had a new property  created a new issue it was over with respect to that but let's analogized to the real issue situation of if we are unaware that they are seeking a reissue that the p t o in and even present that same firearm to the office in a real issue and then say so we're going to see narrower claims as a result to avoid this prior art and i think why aren't they free to come back at us with that different patent and has obviated the concern that you brought to their attention i would say that they would be free but for the fact that there's a holding of the district court and i think it's of a proper holding that there was a national misleading analyse your patterns and we're led to believe that we can continue to produce no one has ever told us anything different now as i know that this court does have a precedent that says that reissue situation like that that notice should be given why is the c i p any different from the the real reissue situation all they did is they had a another pat real issue that i think the court in the federal in this federal circuit opinion was saying that if you send a cease and desist letter and then you don't respond to them after they say get lost that if you're obligatory if you're going to seek new planes for an attack on the same product of whether it's in the rearview situation or the cia the situation is s supported by the record it may not be reversible on any grounds supported by the record but it can be sustained on a new ground supported by the record and you're saying the sense in correct no i'm not saying that's incorrect  parent application if they're related they're all treated separately for purposes of letters and stoppel and i think that is consistent with the our position in this case i believe that to be the law in this circuit but of course that your