the court the fundamental error by the district court was expressly declining to resolve the claim scope dispute that the court knew about prior to entering trial over the one n one and only word to issue an  and so on to the court's claim construction the only infringement issue at trial was does tie taxes coding swell upon exposure to heat or flame that answer was a binary decision a yes or a no based on does it swell or not repeatedly before and during the trial type has presented a different meaning of the word swells that required at limitations that were not in the court's claim construction comes to you briefly raises all sorts of procedural concerns and objections but isn't this case basically about the jury finding there was no infringement based a claim construction provided by the court that seems reasonably correct know from my case where there was an active and live on resolve claim scope dispute that the court area in finding was a went to the factual issue of infringement we believe that was the fundamental error by the court of swelling to the jury through witness examination and then its closing argument perhaps there are several examples of this in our brief there's two in particular that highlight right now which is that over  objection during dr brooks testimony dr horace was allowed to testify that swells has a certain meaning to one of ordinary skill in the ark that is the claim construction question that he was allowed to say that and then he went on to say am at one point specifically i was looking for a change in dimension in the change in dimension from material which is defined as one which swells and char there's more than a little so he said his definition for that whether you he chose his engineering caliper for example because he needed to to determine whether it was swelling more than a little again he saying the definition is more than a little and that swelling has to be quote we have to agree what is acceptable level of swelling and what is a little level of swelling if you like what is more than a little and what is less than a little and likewise and type texas closing ar also argued based on dr who works testimony and testimony that were challenging from doctor from mr wildmon and from mr holland that in order to be a real and to mass and the without touch x is additional limitations and we submit that under that correct claim construction substantial evidence does not exist to support the jury's not infringement verdict had admitted that every other limitation in the claims at issue were present all of dr bob's testing showed that the coding swells and even dr hart's testified on cross examination that dr bob's aluminum pan testing show who works from testifying on the doctrine of equivalence because it was untimely it was not contained in his expert report the court in denying our motion said that found instances in his report where the word function was present and said that magic words aren't required and that the disclosure of this word function was enough to disclose the opinion that was error to allow that the expert report glance and the that portion of the report that the court pointed to was actually in a claim construction section of the report and he dr hor simply never disclosed that in him if we agreed with you what would the remedy be the remedy on this abuse of discretion and so on but here we believe that the remedy would be that you could on evidence of infringement under the guise of one from the group and still cool conclude you didn't prove infringement even though they put on no evidence i believe that the standard is that the jury that there would have to be no substantial evidence to support the jury's verdict the jury could reject your experts testimony you have the burden of proof in french yes we had we could reject your experts testimony because they thought he wasn't credible evidence that was left on the record was dr bob's testimony on the dr mcclelland said this is also where you're wrong this guy was free to testify about function because he'd included it in his expert report and then the attorney could respond that you're right he should never say the equivalent it was not permissible i agree but what he could have offered and did offer was testimony regarding function and how these things function because he expressly addressed that in his expert report and then the attorney could have stood up and said his testimony regarding function likewise proves there can be no deal because it's got to have the same same function way result and so there was testimony that went to equivalence even when i  his statements about d o b in particular and so that's sort of another problem you have is to be honest with you the inadmissible statements and i agree with you they should have been admissible those inadmissible statements are the only evidence they had that pertained at all to function where result and that other evidence would still be  about testing and i'm not i'm not sure that that i agree with your honor that dr horton is being allowed to testify about function function and the attorney argument could explain how his testimony on function applies equally to this other area that is your problem i don't think i didn't read it all i did wan both of the objections to that testimony were sibs dining at trial and p s t never asked for a curative instruction it was their burden to to object to it and they did but the court stained those objections and then it was their burden to ask for a curative instruction immediately after that sustain the sustaining of that objection they didn't do that that's a saying that's the same issue with respect to mr holland's testimony and mr wildman's testimony p f g was instructed several times during trial too that the judge was going to take a sort of questioning question by question and that if you don't like a question then object that the court time and time again told p f g to do that and they did not with respect to mr holland's testimony and mr waldman testimony now the issue of  portis testimony on doctrine of equivalence is really a red herring it's harmless whether it's excluded or not because there is ample testimony that was not objected to from both mr wildmon and mr holland the heart of an issue by an expert the test isn't ok well even if that's how the money was in fact admitted and the jury heard it and wasn't informed to disregard it is there other stuff on the record they could have based their verdict tainted the judgement that's right your honor and with respect to that issue there was ample evidence in the record that there was no swelling that there was ample evidence that the jury the court the parties understood that the issue was swelling are no swelling not some degree or amount of swelling the the parties and the court said in their closing and opening statements and in the jury instructions nineteen times that the issue is swelling versus no swelling and what evidence to tie tex present on that issue they presented the evidence primarily from dr horton that testimony is not challenged here on appeal dr schwartz his testimony on the lack of swelling is not challenged horrocks had two separate independent bases for concluding that there was no swelling st of all he had conducted tests his testing showed and he  words his test results were that there was no swelling close quote unquote there was no swelling cause quote that testimony alone was enough evidence for the jury to agree to conclude that there was no swelling but he swell but there was nothing in it there was no swelling agent in the formulation that would allow it to swell the p s g doesn't challenge either bill so that testimony today on appeal and so either bit of evidence either one of those two pieces of evidence is sufficient for the jury to base a conclusion of no swelling on and your honor you're exactly right earlier in questioning you asked about could the jury of just discredited disbelieve recently reckon not i think in the summer in the syngenta versus willow wood case the issue is not or the question is not whether evidence supports and appellants position the question is whether or not the this is not a question of law if klein's instruction had been appealed and of course they would appeal claim construction because the court adopted their client construction word for word the court rejected our claim construction they had the opportunity p f g had the opportunity if they didn't like the use of the word swells which is what they proposed then they had every opportunity to use a different word to give a further interpretation of the word swells to to get the judge to say that swelling meant one micron increase in size and had all that opportunity but it didn't do that p s g presented a proposed construction the court adopted it word for word now this case i and in that case this court said that whether the jury was deprived of its ability to decide the case is reviewed for an abuse of discretion just as in variety of the parties and the district court reminded the jury  this closing statement issued it p f g just presented p f g did not object to it they didn't object and asked the court to grant it to issue a curative instruction regarding the closing statement just as in the issue the jury understood that was the issue and that's the testimony and the evidence that we presented just as in variety and p f g is not asserting that klein's instruction was incorrect i mean how could they they want that kind construction now in addition to this whole issue about doctoring a quick lesson judge moore i understand your point that that our expert witness used the words doctrine of equipments but he's not a normal patent law expert gained the judge's agreement that it could come in because he read his earlier opinion as having offered enough that everyone should be on the what is he going to give an opinion on the only and this guy in response to your question says i'm not it two days ago i don't know your honor actually i imagine what you were going through with that exact moment in time your honor it struck me a little odd but but he actually is right because it didn't matter that he didn't use the magic words doctrine of equivalence in his report or in his deposition getting heat for that he gave an opinion on functions and you as an attorney who did put on his opinion on function and then you could explain to the jury that's one of the necessary elements of you know we this guy should not and you know it makes me of a little as this judge did such a great job you can't possibly have a ton of that case and he was so careful question my question on this but he should not  inadmissible part is when you try to get him to go further and actually answer the ultimate question that's the inimitable part and that's just a little too far it's like well bit of hubris you know you had the judge agreeing with you so you're going to take it as far as you could possibly t hundred and nine so be really careful with me no i'm sorry i'm talking just in general about the doctor equivalence is it your understanding the doctor federal symbols a comparison of the ways and the function and the result of the on questioning him was to get in the information about substantially same way and that the two types of chemistry flame retardant chemistry which is what s p f forty one dollars coding uses is exactly what martin w which swells and chores to create a thermal barrier and dr horton both his report and it is deposition in fact in fact in response to a question from p f g s attorney at the deposition ta first there is no waiver of the two micro issue in this case the p f to raise the issue probably pretrial in a motion in limine a and then we'll continue to raise it through a trial and this case is like  the fact that we continue to try to object maybe didn't object to each and every instance in a long trial where we did end up in sidebars for a th of our trial time doesn't mean we waived anything spew prior to ordering the trial that was not the case  here the the opposing counsel indicated that lack of swelling testimony by dr horse is not challenged here today we we have challenge that testimony because we said that his testimony was offered his opinions were under the wrong  meaning of the word swells and so we very much challenge that testimony and our brief pages nineteen through twenty nine lists an extensive number of examples where dr herbst redefined the word meaning the meaning of the word swells to add further limitations to it and then with respect to the issue of doctrinal equivalence and i apologize we don't have our briefing here in the court room on our underlying motion to the district where for jail for a new trial we do have our briefs here to this court and the  judge's order our underlying motion as far as the briefing to this court we did conclude our brief by asking for the same judgment should be entered for the alternative a new trial should be ordered with respect to all of these issues i think your question was about the underlying motion though and i'm fortunately i don't have that portion of the record with me