hear the case whatever you need to go back to the district court and get her to do some paperwork either of you have a comment i would agree that the court summary final judgment did not address the question of the standard or appa least counterclaims and there are pending can't there were pending conflicts claim correct so what do you agree that that's a bit of a problem overturn the decision of non for joint summary judgment it's our position as it's been brief that we do not need to modify the claim constructions and that we prevent we now understand markup both claim terms of terms and you're right they do they are limitations in every single claim in the patent but just to be clear even under the district court's construction we do submit that there's still an infringement  if there are no other questions or just serve and go back to infringement i'm going to skip over the part of it with the intention of like the court has as fully briefed on that but then the event the district court failed to give inferences all favorable entrances to to the patentee here and as we submitted in blue twenty nine to thirty seven and grace evan two eleven we there is no dispute on the on the replaceable cradle connector limitation there's no dispute that the accused products have a cradle connect so it really gets down to the point about the replaceable limitation and whether or not these accused devices have criminal connectors that are replaceable now for appellants position and we fully briefed this to the district court and in various briefs and we showed photographic evidence of a replacement exercise where i did it personally we had an expert that did it the inventor did it many people did it it's a very routine exercise with an off off the shelf screwdriver to replace the cradle connector we should have photographic evidence it's in our brief blue thirty two showing the cradle connector and it flew thirty three to thirty four going through that replacement exercise and through the simple exercise of unscrewing the cradle can i for one can remove it and put it back and that's the whole point about having screws in there in the first place submitted to the district court came in the form of a declaration from a very fun employee who just concluded citing wholesale to thirty or forty pages of the record that the cradle connector was built in and not replaceable but that we submit is insufficient to overcome what we showed first of all to be actual replacement and secondly insufficient to meet very phones burden in showing a non infringement here similarly on the sensor unit interchangeably mounted limitation there is no dispute that the use products have a sensor unit and so the question again similar to the replaceable critic and the actor limitation is is that sensor unit interchangeable and again we submitted to the district court in various briefs they're all in the record prejudgment photographic evidence of an interchange exercise where if one were to open the device it can be interchange with another sensor can be swapped out it can be exchanged and how did the where did the district court find evidence that it was it was not interchangeable well again and the court solely relied on a declaration of an employee of verifying mr gerald hammer who made a conclusory statement that the sensor just like the replaced just like the critic connector was was built in and you know to use the word they used integrated but as we showed in our briefs that was not the case and it could actually be exchanged and swapped out readily low on but about end of the claim construction adopted by the court so the district court parts are are in front of position was briefed as part of our response to summary judgment and to forty five days of the initial discovery order so almost a year before discovery was to close and it was fully briefed and then the court had a hearing after that and then invited markman briefing and claim construction briefing and clarified some questions for the parties so there was subsequent briefing and in each of those briefs we submitted further evidence of infringement to the court and responded it just that was as early as july twenty second two thousand and seventeen on the sensory unit being interchangeable question and you can find that at the appendix at mine twenty three to twenty four so that was well court supposed to understand that even if it were to adopt the very portion of the construction that you cite here you're nonetheless arguing there is still infringement under that construction because you say it infringes under both if assuming want to limit mates this portion of the construction district court didn't eliminate that portion of the construction so this is the waiver argument the waiver argument  it appears that this is the only place where you introduced these photos which are in your response a claim construction brief and it doesn't seem like you introduced these photos and argues that they met a question of fact on infringement under varicose construction which the district court didn't adopt that's that's correct for that part your honor but there are other portions of both of our briefing your opposition to summary judgment in your opening claim construction break there you never introduced any of the photos or pointed to any of that interchange ability instead your argument in all of those locations was it in infringes even under  verizon's construction because the barcode scanner basically this is available for purchase with or without the barcode scanner and that's a different argument that's not the same argument as look here we can do this if user can do so you made one argument with regard to infringement in all those other places and the only time you made the argument you're making now unless i'm mistaken please show me where other than one twenty three and nine twenty four it's me so let me explain the sequence first and then i can get to your question but  phone raised that issue about non infringement in their reply brief on summary judgment and so we were left dealing with it at the hearing that the district court and then in our subsequent mark mark and briefing but to get to your question about where we also argue that there's going to be infringement regardless of whether that claim limitation is added or it could be whether or not the claim  limitation includes with another sensor by a user and your honor i would submit that having a hard time finding that right now your honor here member which of the document was i believe it was in our reply brief on claim construction  i think that's the want nine twenty three nine twenty four right that's your response and claim constructi characteristic of the sensor that it be able to be entered to be able to be swapped and exchanged similarly on the replaceable cradle connector limitation the district court erred in its construction of that limitation by that cradle connector again there's no support for that in the record as  may please the court i will start with addressing the court's finding of non infringement with respect to the interchangeably mounted sensor and actually i'll speak more generally to  the court's finding of not infringement under its constructions doxy did not argue or present any evidence of infringement under the court constructions prior to its motion to reconsider throughout the briefing the summary judgment briefing the claim construction briefing he reiterated that merely remove ability of these two features the cradle connector and the interchangeably mounted sensor was enough to find infringement it wasn't until the motion for reconsideration that he submitted an expert that gratian relying on the very same abbott and you know that he could remove these features from the accused devices that he argued well that still infringes under the court's claim construction but that was mere conclusory argument made after the court reached its its decision on summary judgment now with respect to the specific evidence that he presented on infringement with respect to the interchangeably mounted sensor as the the district court properly construed that as a sensor that can be removed and replaced with another sensor that's the relevant portion of the construction and what mr dox the president of if the court has already looked at at appendix nine twenty three nine twenty four this is all he presented was images in his briefing not supported by a declaration of one of the accused devices showing that he could take apart the device and physically tear out create an issue of fact and that's why the district court granted summary judgment this report didn't just say there is no genuine issue of fact here is that there is no wish you left there is not a dispute here and actually if you look at  the statement of undisputed facts submitted with the summary judgment motion and doxies counter statement there too you'll see there was no dispute of fact and appendix one fifty  fifty six he and the florida local rules the non movement non movement in this context needs to present counter statement of facts otherwise the facts are deemed admitted and this is said in his counter statement of fact with respect to that assertion and that set of pendants five one four he said the evidence demonstrates that the sensor in the very fine products can definitely be removed or added as necessary so he's basically saying he can remove it and therefore there's infringement that there is no dispute that they cannot be removed and replaced they just can't be swapped out that is fundamentally the issue here i mean there is a meaningful distinction between the patent and the accused product was the same is true with respect to the cradle connector again the only evidence related to the replace ability of the cradle connector which the court construed the replace ability aspect of the creative connector as something that can be exchanged or swapped out and the only evidence is if you look at appendix eight eight eight eight eight nine again this is a claim construction roofing and again these are images within the briefing not supported by a decoration i mean it's not even really evidence it's just argument we again have mr doxey taking apart one of the accused of isis and physically removing the cradle connector with a screwdriver that's remove ability that's not replace ability that's not evidence showing that  connector can be exchanged and swapped out so again the district court properly concluded there's not a dispute of fact here and granted summary judgment of not infringed on two independent grounds both supported by the record and there's no basis to overturn that now i'll move on to claim construction i'll do this quickly i know the court knows what that is about it's a case that covers or is used in connection with communication devices and a critical novel element of this case is that it expands the functionality of the device that it covers and it does this by having modular component s the two claimed modular components that we've already talked about are the interchangeably mounted center and the replaceable cradle connector and with respect to the sensor the notion was look at your the users in the field they want a different sensing functionality so they have these a variety of different sensors that they can choose from to put on to the device and use you might want to bar codes and so you might want to fingerprint kind of sensor we don't need it except the reason that it's in there is that if anyone can be the person who removes and replaces a sensor you could argue that the manufacturer could do it or that the designer could do it in the process of building and therefore there could be a hypothetical argument that you know any device made up of components has interchangeably mounted components that's why we included the buy by the user just to circumvent confusion on that issue because the patent is clear that the notion is you have this peripheral device and there are many modular components that you can choose from choose from depending on the and so the cords coming construction of interchangeably mounted sensor is supported by the record by contrast mr doxies proposed construction again he pushed for a sensor that  capable of being removed or added or exchanged so he's arguing that interchangeably mounted means mirror remove ability that just isn't supported by anything he doesn't cite anything in the intrinsic record instead he relies on inventor testimony as to his subjective intent as to the meaning of the term which is not proper he also relied on his own testimony as to commercial alleged commercial  embodiments again not probative to claim construction so there's no support for mr doxies construction there is support for a pair of cons proposed construction in the courts adoption of that construction was absolutely proper the same is true  the replaceable cradle connector but i do want to address that all the issues raised by mr doxey here on appeal with respect to the construction of the replaceable care connector he says it should include the word port and there shouldn't be the inclusion of language that the port or connector is something through which data is transmitted to and from the cradle none of that matters for an infringement then the district court actually found that the accused products had a connector which was a port through which data was transmitted to and from a cradle not infringement was based on replaced ability which the court construed as exchange or swapped out and frankly if you look at mr doxies proposed construction he seems to agree in its proposed construction that replace ability means that something needs to be substituted with something else i mean that's what he says in his construction so his complaints about the inclusion of the report and the inclusion of the language regarding data being transmitted to him from the cradle they're  irrelevant and don't bear on the ultimate issue of infringement lastly with respect to the district court's exclusion the expert declaration submitted with a motion f reconsideration and again in a court the district court did not use its discretion in doing that i can talk about that a minute but even if that were to come in even if that declaration were to come it it wouldn't  that were in the claim construction briefing showing that the cradle connector could be pried out of the device and showing that the the sensors could be pried out of the device the only new fact if you  want to call it a fact in that in that new declaration was the assertion that that evidence somehow supported a finding of infringement under the court's construction which is you know i was just real briefly i just want to get to the question about where we address this issue about infringement under the district court's construction and it dawned on me after i start down for a second that when we briefed the infringement issue it was the court's request for a briefing on markman and in our marketing briefs we argued infringement under our construction as soon as the court decided its construction within a couple of weeks we submitted additional evidence that's the request for reconsideration records and just your clerk said it was not timely provided it correct when you were aware though of verizon's claim construction at the time that you said needed your kind construction brings with infringement arguments based on your own claim construction right i mean you were aware of the construction the district court why wasn't explored or or briefed in our briefing and that was because we only addressed it after the court decided what the claims man and you know that this or court felt that it was too late we obviously submitted our briefs that you know it was submitted in a couple of weeks and you know it was very early on in the case this was a year before fact discovery was intended to close you know