without argument later today on the briefs namely appeal number zero seven dash seventy one seventeenth woods versus department of veterans affairs and appeal number zero seven dash thirty one eighteen daniel versus office of personnel management on the four case argument list will hear argument first in appeal number zero six dash sixteen thirty seven capital bridge vs i d l technologies before we begin the court wishes to express a thanks to judge buck lo from the northern district of illinois who is a member of our panel today is also  that court is the holding of the district judge was that it would effectively erase or vitiate the claim element requiring wireless transmission if it was allowed to have  a wired device be deemed an equivalent and that's because seem to be a very clearly established principle not just by this court but also by the supreme court in the warner jenkinson case for example so how can that be wrong if it's a small application of a supreme court hold back first of all the w to the structural elements of the device as and and so i thought that's all that the judge did not the judge said that the structural difference is whether you have a wire connecting to the amplifier speaker or whether there's a transmission through the year of radio waves i look to the so that the two wire is structure and an antenna in lieu of a wire is also structure so i  don't understand your argument if you're saying that the the judge erroneous lee construed these claims as if they were method claims rather than claims drawn to structure i'd like to be in answer that if we disagree that wireless attention by separating it from the transmitter and saying it's a separate limitation rather than saying that a transmit transmitting through a wire maybe it would lead to a transmitter transmitting wires and let me just i would really would like to make this point when playing twenty two which the cord almost totally ignored they did the only referred to it was not part of the some adjustment most well and that's how the disputes get turned by the summary judgment motion in the opposition in response there to the it seems to me it's a hard argument for you to sustain that there's reversible error in the failure of the district judge to separately construe the word transmitter when neither the party who proposed the construction of  is describing the action of the transmitted and the preamble that talks about that life because i disappointed in it i mean what i see and please correct me if i'm wrong but i think what i hear you saying is that whole invention i mean you list components that you find in many types of inventions of this kind or devices of the skull and and then there's this a way by the way it's wired all of this is for wirelessly transmitting it does provide a description of the invention but this is not a while to play as far as the playing elements limitation yes a structural limitation from a translator yeah but we don't get to that question that's the griever tank analysis if there is a missing limitation under warner jenkinson that's step one is to see if there's a missing limitation that you say that we should look at both the final yes limitation and the preamble right and i would say that another way you raise the point earlier when mr walker was speaking but i think it's a catch twenty two  about more clearly setting out the invention would you agree that that is directed to the requirements of section one twelve not the sections of the patent act dealing with prior art like one of the two and one of the three there was an interview between the prosecuting attorneys at the data and examiners of ours and we don't have much of a why do you suppose he used the one twelfth language rather than saying more directly i'm overcoming the one of the three obviousness related by narrowing the claim by adding the limitation  so in referring to the prosecution history i guess you're saying that if we don't rely on warner jenkinson and we don't rely on graber tank action bravely action after two years and with basically for inaudible what's the relevance of all that we we don't have a rule eleven other similar sanction issue before us it says i understand it by motion the only thing we have before us has to do with the appeal not the trial level litigation so the length of it two years in this matter only relevant because there's no issue before us dealing with the trial in the light issued just about a year ago and it's just the way the wheels turn you know it's taken about a year to get this point but i'm right you have a separate motion here we do for rule thirty eight and i'll be happening only be related to prosecution has pissed off the district court noted three separate times not once not twice but three separate times in his opinion in three separate footnotes that he was not  l starting a page twelve of his opinion and going on for several pages so it looks to me like he he made a ruling even though he indicated that that ruling was with the necessary to the outcome because of the prior rulings he had made on alternative grounds but he did make a ruling i think it's fair to say and it is being challenged as part of the appeal before us and  seems to me that we certainly could appropriately reach it whether we have to reach it maybe is a different question are you trying to suggest that we we shouldn't reach it as well as in your view it's frivolous even for them to challenge that ruling with three quarters of their point three out of four points the spread left i'm not so sure this easy to agree with that it if there is a ruling that's an alternative ground  nonetheless appear prosecution no it's not a rule it didn't he kind of put it out there and eight isn't the inference or the suggestion here that well if you don't agree with the other one this does the job also was really a broadening amendment not a narrow yes but he once said that the record set was that covered a wired and a wireless transmission in perec there is no basis for him to say that there's no cases that i've seen referred to reside in this case there explicit structural language in the slaying that the court says ok this is set for and you can have the opposite without  the sentence represents a lower work done in france because they don't have a transmitter the lower court allowed us limited discovery on the transmitter and then defense brought the motion because their wireless there was no