krinsky who has served with distinction has my law clerk for the past eighteen months and has done a truly outstanding job i have every confidence that he will be a fine addition to the court and he is certainly fully qualified i'm indebted to him for his service i appreciate his contribution and i look forward to his participation and with that i will make the formal motion i move the admission of david milken krinsky who is a member of the bar in good standing of the highest court of maryland i have knowledge of his credentials and i am satisfied that he possesses the necessary appearing shortly at the lectern and making the same kind of outstanding arguments we are about to hear with that whole first cases feel number two thousand and seven ten sixty three international when you get to the merits if i understand it there are two separate sets of issues here one with respect to claim nineteen in the other set of issues with respect to claims one in seven in the claim that's right there's two separate sets so the judgement to rest on both and all three of those crimes right if it does the judgment there's different challenges equations that come out seven years with on on the ground the annual limitation when sense one is acting and their response was that there was an independent ground for this did they argue in editor interpretation of well that doesn't sound to me like an argument that we didn't need to address it it sounds to me like an argument that you should win on that point know there was you were you were saying that despite this local rule that you were still entitle to raise the in your argument and that you should prevail on the in your yes absolutely because the local role is effectively and admission believe that there was some reason to concede in your limitation that some suggestion that now it's just a mistake just was it a mistake or was it simply a reflection there in some earlier case that judge real had arrived at that or that's not elaborated there's no citation i can't figure out what's going on what where was the annular limitation construed that i'm earlier in the case  year into your report will do you want to address the adjoining and political polling on issues briefly before you conclude or if you need a few extra minutes we'll give you a few extra minutes but when they responded to the summary judgment motion the claim construction of adjoining had already been arrived  you're saying that at that point they should have raised the talk of equivalence issue if they were going to raise it in it's not that in the the waiver resulted at the district court level when they didn't raise the doct involves why they have they don't have to do that i mean they did it the burden of proof to establish infringement on you in that they made a motion and if you wanted to contest didn't argue for darkening the clones infringement i suppose we lost the lot they would have are you there yeah but the court noted in the excellent case why are you better off because you want i mean if you if you had on that claim construction exxon proceeded to argue for a literal infringement right and did not argue for doctrine of equipment so when the when this court said the claim construction was wrong then that wouldn't have been fai the time the motion was filed right but it was yeah but but the question is not what happened when it was decided the question is whether you waived by not responding to the motion and raising the doctrine of equivalent section and at that time the drugs what about on in your room didn't they raise similar in the appeal an argument that the judgment of infringement with respect to the six ninety nine claims one and seven should be set aside on the the judgment infringement with respect to the six ninety nine is reversed because of a mistake i made in your construction well i don't think it says it says it is reversed disagrees with you as russians both but as  peace to sixty to two pages later they did reduce this as an average which is referred to that again it was repeated five times the district court has to be free to force as little as new federal prejudiced by their failure to raise it in connection with the six ninety nine when clearly it was an issue with respect to other ha the fact that the movement on the motion might have been successful if you raise the issue is iraq would have but that's not the point the point is that this seems identical to shoe was being litigated with respect to these other limitation was an issue and it was briefed in argued and presented to the district court and then tossed on appeal so you know what what's the problem it's not it's not like these other cases where the issue wasn't raised at denying i don't mean to suggest that the local rules should be ignored or or disregarded quite the contrary but under the circumstances as judge doug pointed out this term annular was clearly in light clearly contested and clearly affected all of the patents and it's the same same accused treacherous involved it is does it make any sense to contend that well because they made a mistake in not opposing that issue with respect to that patent yet everybody argued this throughout the case the same limitation act they think they  with judgment mentioned as counsel whether or not in fact it was true that the annular argument was in front of the court right from the very beginning counsel said no it i'm i'm not sure it is i mean you know when you when you have these issues about what was raised in a summary judgment motion what was briefed below it's sort of helpful for us to have in the joint appendix instead of having to ask the district court to send us the relevant documents