we presented that evidence that the court said was missing in the let's use one case and the examiner considered that evidence and found that the claims were palatable and so it was in no way trying to circumvent the court's opinion we were supplying the evidence five four nine eight eight and one since one i'm that point it was because we never got an opportunity to do it we had tried to voluntarily dismiss the second district court case just reported that with respect to a couple of defendants but others back to side labels of infringing because it talked about increasing hair growth including at least increasing length thickness and darkness so darkness appears to have been in through the claim construction and saw which was this all these different types of hair growth resided into the preamble of the claim as a replacement for the actual recitation of increasing hair growth and then ok now you know that hair growth can mean all these different things and now that claim because it was invalidated by our prior panel of vision why is it that you can now it can choose any one of those and say well even though that claim is invalidated that covered all the different versions and we're now trying to select one of those versions out and tried are we litigate i think the answer is because it's the difference between obvious and the way you do that is you compare the claims from the first case to the claims of the subsequent cases and you ask do the claims in a subsequent case present some kind of different issues with respect to the wasn't like it is a first  if we would show your puter i disagree with that because there's a difference between those claims in which he's won with genius claims that yes they included darkness but they included all sorts of other things whereas we have different claims here that are just limited or issues that relish to determine all was present both and let each one then that edge it is in this case i think it is present in both cases but the difference is that in the first case it was just one member of a broader  back and then break out any one type of aspect of increasing hair growth in the future claim and litigate it so it's kind of a standard fall together rise or fall together concept that i think makes me wonder if you're bar here from pursuing the darkness but i see what you're saying your honor i guess my thought would be i mean you could say that about any case in which you have claims to a genius you know  was whether it would have been obvious to apply the matter of prose to an eye and as soon as the conclusion errors yes it would have been obvious then all of these descriptions of properties or results you get from that single method stuff are just inherent properties and so therefore that's the other way i'm looking at this case ok you want to now claim this particular nice result you get from that application of the lot of prose and maybe you want to make an argument that the latino one claims we're describing some other different nice property you get but it's all one of the same in the sense that the law is clear that you can get a claim on an inherent property or result on a previously understood to be invalid method claim i guess i would phrase the question here is different it's would it be obvious to apply the amount of prose to the eyelid to darken eyelashes and on that question francis silent and so all you're left with is the johnstone reference which talked about a different another issue very quickly the issue on the sandoz judgment the fact that it extended to all the claims as opposed to just the asserted claims that's a very important issue for our game and it was very clear from our second amended complaint that we were construction below on this issue of method of stimulating hair growth in the four of four and and of course the reason why they did it as you said as you said was in order to cover us all of the defendants for purposes of infringement so they asked for broad construction they got it and now they're stuck doctrove version results in an increase in pigmentation that's an admission within the pants specifications themselves and as as a consequence of that when judge eagles was interrupting her own construction in her order in this case she said that by definition darkness is present within that construction so darkness has always been there so there's just or countryman's counterargument is that yes increasing your growth should be considered perhaps a genus well i think you picked up on that issue exactly correctly which is literally we're splitting hairs here because what we have is a method of enhancing growth and a number of attributes that flow from that and in fact  has admitted in more than one place that these are merely attributes of hair growth in fact it says it in its own label and i said in this post robbery thing and in fact in the claims themselves the nine five three patents several of those claims actually which that was proposed by allegheny so it proposed that broad construction in order to try to cover the defendants for infringement so now it's stuck with that broad construction been looking at whether it just issues have been adjudicated but in this court's decision i will oh one of the things we look at is the substantial similarity of the claims first of all and second of all we look at whether or not the differences in the claims materially alter the dark or in fact they would have a real problem they did because in the pan specification itself you'll find the word darkness and you won't find it anywhere so they would have a real one to one problem if all of a sudden there are they're saying that  darkness are not synonymous that's really the only support they have for that so it's of the point it looks like we're being have to buy into this concept that dark means growth or longer i think it's just simply an attribute it's an attribute that's a get the symptoms dirty stands out right correct doesn't make it longer or if you darken something you don't grow it but i think if you here i would have to agree with a on but but i was you're actually in the arguments on that point i mean it seems that that the record the way i see it is that the that whole question  appeal that ruling and it could have it had every opportunity to litigate the issue of darkness and it didn't first amendment right there the record is not clear on that point your honor the best we have is it is a paragraph on page eighty five of the judges or a judge's order which seems to allude to that but we we don't have full clarity on that point but what we do rather than at least an equally possible interpretation which is the judge was not as focused on the fact that the second amended complaint had scoped down the case to just three p i think it's fair to say that this is our interpretation of this point but i think it's a fair one based on the record do you think that the two provides an independent basis for a shovel well in that case that was  five four patent which has the same darkness limitation at issue here they never appealed that even though they had full and fair opportunity to litigate that point so that's crucial so while there wasn't a full blown litigation because  to but i think what they're stuck with is the fact that they're making an argument that darkness is somehow separable from method of enhancing hair growth when of course it isn't it's just simply an attribute which stating that you i think it's fair i think it's fair to say that their failure to argue that point it could be considered law of the case but it should inform the analysis here that they didn't really believe that darkness is a patentable distinction of any merit that actually alters the validity analysis if they had they would have appealed that judgment just like they had done this one but they didn't i want to ship one of the touchstones of the analysis a plot of the stock will is the question of whether or not there is a substantial similarity between the claims and one thing that really hammers home the substantial similarity between claims are directed to the same thing which is a method of enhancing hair growth and i would just like to point you to one page of the record which is eight to six one six this is very important say again eight two six one six  during prosecution overcoming a piece of prior art it said the preamble is limiting so we can get around this priority for the following reason and this is the little paragraph it is clear upon review of the application that the new use for the old compounds for stimulating hair grow including eyelashes eyebrows and scalp is the invention the title of the patent applications and title method for enhancing hair growth referring to the nine five three patent application here the spec clearly describes that the invention is for hair growth including eyelash growth and this is really the key part it would be nonsensical to read the most fundamental part of the invention out of the claims and in fact they even take a step further on the same page below that and say that the reasons why the preamble should be limiting in this case and it certainly is doesn't speak to the the issue that we have before us which is the genius versus the cheese distinction otherwise i'd just like to focus on the scope of the sandoz judgments so good shame to pick up on your question from earlier there is nothing in this record to suggest that the district court was operating on anything other than the second amended complaint and actually if you look at santos his motion to dismiss that was granted and then we've appealed from dismiss or find collaterally or stopped any claim other than these claims eight twenty three and twenty six and just with respect to the comments about serial litigation you know obviously we disagree with that but i would say