intended to show the measure larry canal does not extend the length of the long bone and in fact i find that it does and then based on according to the disappointed value of the evidence and said well treble is not done measurements of the for the prosthesis and surround the cement metal all the way up to the top of the long bone which was true and because of that and because of my revised plating structure i find that there is no infringement there's no dispute is there that there's no infringement if because the claim language is clear tell me in this claim language which says madore can now must be included in a portion of the metaphysical nepotistic all region how i'm supposed to use this picture to somehow tell me the missouri canal doesn't extend that far we understand must constitute at least seventy percent of the transfer sectional dimensions of the delivery canal defined by the metaphysical an episode seal segments of the long bone and at least ninety percent of the corresponding transverse section of the l is we're talking about a human long ball whose dimensions and even relative dimensions will vary from person to person and some people as the last test text suggest the megillah canal will be in the diaphanous and other people especially people who are still growing the sensurround of cement metal has to be seventy percent of the metallurgy now i guess i thought that science or so the problem here i mean i just must be off the mark and so i'm hoping you clarify but i thought i understood the problem to be the district court's conclusion that the non infringement evidence or the only evidence of records is video showing the implantation didn't can all show the metaphysical an episode seal regions it would focus entirely on the center and since the middle of canal in the record level one which is their first marriage you don't need to go to the top of the bone do you need to go to the top of the inquest your honor if we go back na na na but the the district judge is concerned that we go to the top of the about this step and well maybe in bone but the district court seems to have knocked out all chance for proof because they don't go to the top of the bone and we all agree that your honor in this particular s's we have to look at who's purpose it was to prove fast to get to a fact we have a circumstance where the first measurements taken  eight centimeters from the cot i'm with you on the theory i'm just not i think once we have an error in where you're measuring and how much you have to do at that point has been argued to be within the middle earth and now within the diaspora region and there was this argument about whether eighty four point four percent is around ninety let's accept that it's even correct that it is around nine where the then we have an argument that sometimes it will be there now we have mr summerfield saying more or less what he said in the great grief which is often but at a minimum we have got to hopkinton telling us if we accept region if it's part of the i have to feel region and we have no that whatsoever not a single point yet this court that first time around that's a prove infringement you must meet the percentage limitation for each region and i'm nothing we have other failure proof are you arguing the harm of that error than is that what you're saying the judge measured required something that should not have required but it still doesn't make any difference i know you want this record your honor that the submitted as a sworn affidavit of a motion for summary judgment and we cited in our our briefcases that fully support what the district judge had to say about that to his credit he said i could cite the case based on precedent by just ignoring outdistance entirely we don't know a thing about what happens between level one and the cup we know for example and i'm reading from your honest opinion in the original appeal references made is rooted in the recognition and the importance of the stands transfer sexual dimension a lot to be entirely there rob relative to the current bonding sexual dimensions than because it's not it's not the whole we're going to focus on is what happens in a small portion here and not be concerned with any coding up here by the way the path and all the number of places that we're going to cook the whole stack that think what the dispute between the parties over what's the ratio how do we calculate so did you take this statement of the federal circuit and go back and say oh now they have to go to the top of the long bond because the federal circuit made a finding that wasn't an issue but your honor that what you did know your honor i remember just if we look at the original district court decision it's on page nine forty four of that decision but what you're sharp said the first time around before you got into the whole question that dr holmes he told us the bone hasn't let's look at the pattern itself here on the pattern set and this is dr holmes in speaking he refers to the canal defined by the end of a steel more clearly i don't know what it is and this court said this invention is rooted in the recognition that we need a tight fit and specifically set your own that any construction any from structure that decreasing rapidly and they would have been poor except eighty four point four percent is around ninety and that perhaps something in the middle is seventy six percent we don't have anything at all would also be around now and your honor i would also just that you want to see just how how unreliable all the measuring is we know that the entire virtual surgery was done with a virtual body there was  grasping and if you want to see just how unreliable is your honor i would respectfully direct everyone's attention to page eighty six eighty six of the which is the last page of the virtual surgery and what we see is that whether far off yes percentage of one hundred twenty two percent a minute how is it possible it's possible because we're not dealing with real thirty seven seconds remaining to give us a minute maybe measurements above level one however if we look at it in your group anyway based upon what mr mentally just told us about the lack of any measurements between level one and level two and eighty four so already getting a ways away from ninety a couple responses that your honor first of all the four percent argument assumes that about is no longer in the claims number two everything mr blix said about the variation measurement between level and we're not talking doctrine of equivalence here that and that'll be your final word but the answer is because actually no countervailing prove at all that is not about ninety percent they have no evidence of what measurements would have been why eighty four percent is not at least around ninety percent we have