construction after the verdict and so it strives mightily to contend that that is not what happened but i think it's exactly what happened and under the charge actually given to the jury the was more than sufficient and i think boston is actually never argued otherwise i'd like to direct the court to three documents that i think makes out very clearly our point the first now rising and falling in waves is a pretty fair dictionary definition of undulating the reason that boston narrowed it to say having at least a crest and a trough was because the preferred embodiment sections of only one way and it was critical that the claim construction that was proposed by boston encompass the preferred embodiment or the new it cannot possibly be the right claim construction and so to turn the page to six twenty sets and so on each of the undulating sections was one trough and one one wave one crest and one trough understander dictionary definition a wave is a tro associated quest and boston needed a claim construction in which when a single undulating section was called for by the claim as it is and claim twenty five just says one undulating section that they claim construction covers the preferred embody and so you read at the top of page eight six twenty boston we prefer figure eight is the only illustration of the undulating feature of the described stand structure it then refers to a dependent claim twenty two which describes undulating as being in general form of a sine wave and says this description of undulating is fairly consistent with the requirement for each wave each individual wave to have a crest and a trough because that is the essence of the sine wave shape now dr robinson excepted this is the claim construction and she then obviously legitimi right to look at our response which appears that a twenty four zero five of the appendix twenty four zero five and now confronting the infringement question under boston's claim construction the crest the top of a structure high part of a wave sighting websters fast to a trough and then rises again to a crest so we were perfectly clearly explaining that our opposition to their summary judgment motion that we would show the jury that the near stent which has a shape because like this rises to rests and has a trough and we were relying in part on the dictionary definition of crest the highest point  weight and continue our opposition on turn the page one twenty four zero six at the bottom we pick up on boston's discussion of a sine wave and we say and it's a page thirty five thirty two and that page thirty five thirty two paragraph four the judge denies summary judgment to boston she says given that the word undulating is used to describe different structures in different ways and given the various ways the accused product has been broken down to match or not the semantics the court finds that questions the court is saying wild and clear that under the claim construction that she has just adopted rising and falling in waves having at least jury to resolve they weren't antithetical to her claim construction and if boston at this time thought the claim construction was deficient because it didn't say that a crest test had a marking thirty one of the record the moons i give you should be interpreted by you accordance with their normal dictionary definitions the normal dictionary means i'm sorry so the quote was telling the jury there was perfectly fine to use the dictionary definition of crest the highest point of a way to find infringement and this was boston's last clear chance to do something about the claim construction if they objected to that they should have said so if they wanted a new construction of crest they should have said so none of this happened and then we got a verdict and we would have it after the first after the verdict last and came back one ja all and it did not argue that the evidence was insufficient on the case that we tried and read the instruction that was actually given to the jury it argued they asked the court as a matter of cla construction as a matter of claim construction it said so explicitly it twenty four thirty two that the charge that was given to the jury did not contain the mooning that the court meant to ascribe to the claim the court said that the parties that claim construction had agreed on sixty two sixty three as her very brief opinion on the subject the parties in the court agreed that the terms crest and trough the final arc incurs citing nothing in which we agreed to that and ignoring entirely the summary judgment briefing in the trial in which we clearly didn't agree with that she says the court did not include this language because it would suggest neither party suggested it was necessary but  contemplated and so she's basically saying well the charge doesn't say what i needed to say because boston didn't suggest that it should say what it wanted me to say but i'm going to do it now at you can't do that in a boston sort of claim construction it got the claim construction it's lost it will meet any right to change the claim construction after the jury was struck and that's what it did i think this court at packard case says it best the parties cannot reserve issues of claim construction for the stage of post trial motions were issues of claim construction have not been properly raised in connection with the jury instructions and it's improper for the district court to adopt a newer more detailed claim construction in connection with j mall the question james always was substantial evidence offered in support of the verdict on the charge actually given resolve if the court reinstates the infringement verdict which it should the reverse doctrine is easy does the man's a proper versal i ask only that this court decide the issue boston wants  earth in fact what he didn't tell you was the very claim construction they had proposed assumed cracked and if you look at page nineteen of the red brief we quote very proposed claim construction instead of curve was a trial the point is that only may not have agreed with the construction that the court gave they agreed with our chlorine the a c and the court knew what it trough it's not just because they can do this mathematical argument the point is there is no rise in for all there is no cresting trough there's just a big truck and but i think the quotes construction was in waves rising and falling in waves and if it's clear that that meant that there had to be occurred shape that went up into and a curved shape that structure was where the end points work for or it be unrelated section wouldn't even include any of that curve portion because it was simply in the midpoint of the structure not even your honor is talking about and that was the only thing they gave to the jury when when the he went and furthermore they made very clear in the testimony that what they were giving to the what they were telling the jury was the crest is the time they ever used that word point was a trial this letter that they say well you know it showed they didn't agree with the claim construction well the letter says they agree with the claim construction more importantly that letter doesn't have a word in it about point and here are the end points of it and that in the end points are shown page thirty five of our brief that's worked very expert put all you had between them not a second little shoulder curve but just trough we wanted one that said to the trough and crest the court went our way at that point they understood that they didn't have an infringement case they could have done three things two problems they could have dropped the case where they could have appealed the claim construction they didn't do either of those what they did was tell the court ok we understand your claim construction but what they argued to the jury was wrong they confuse the jury because where they argued to the jury was this is a point cress can be a point we knew back from their own construction which i showed you on page nineteen they made it s it and they did succeed in what they attempted to do the confuse the jury and as a result they got what they wanted but in effect they didn't get what they wanted now they say we didn't object that's not correct at the end their case the boston scientific attorney stood up and moved for j m o l under rule fifty eight and he told them he told the court that their evidence doesn't the claim construction he put them on notice as you are supposed to do under fifty a day and begun had a chance to go back and try to prove that there was a curve try to do all the things that appellant's blue brief does improperly they after the fact attempt to make some of the arguments that your i was making by drawing in curbs in red and things they never did that  trial or bring to trial or after the trial all they did was argue the crest was a point all these other arguments came event the judge said it was fine and we agreed the judge ruled on j mom we didn't have to do anything with that construction that was fine was know number one are can curb storm implicit in rising and falling in way but us having a trough in a crass showing by their own acknowledgement of that repeatedly we won both they just wanted single crest or single drop that was the only issue dividing the parties everybody was in agreement so we didn't read anything in the court didn't read anything into that and that was the critical thing are these things either had to put it out prevents showing the crest was a curve or not and they can't now come back and say well you know jury could have done anything when you intentionally mislead a jury you have to assume that you were successful when the result is what you want and i don't and so that's what judge robinson discovered found afterwards you know they say oh all summary judgment should preclude the court from doing this but i think if every time a a federal district judge denied summary judgment that met it couldn't reach a mall you know we centrally got rule fifty of course we all know th district judges don't often have that the time to put the effort into a full understanding of the issue on some rejection sometimes they do this was close the trial you read the judges did denial and it essentially says well the word undulating appears in many different claims many different contexts so i think there are genuine issues of material fact the court said that not have been been educated by the trial the testimony and understanding what actually really we're arguing once shandor stood that once we may or rule fifty a motion she was entirely appropriate in letting it go to the jury and then taking it away from the jury afterwards under fifty p that is the recommended practice and revise or to rule fifty so she acted properly and there's nothing that she read into that claim so the bottom line is literally should be affirmed on an equitable conduct i think we've made different arguments but i think there's one very simple argument on an equitable conduct that will dispose of this case on that issue this is a thirteen year old case and what might have been a good idea to do five years ago or so forth may not be a good idea now but this court has and everyone understands there had to be a cure you know our position its core to bring man to look into paint cured to have the court fleshed out a little bit more but one of the arguments we've made in this is the want to just want to focus on and this is this is not cured by simply giving the patent office the reference among many references in a continuation as a matter of law there had to be something work we're talking sure not not just simply doing it over again later which you could have done to begin with sure means there was a wrong and you have to do something our position is in this case as a matter of law sure had to be at least telling the examiner hill stead shows manjeet toodles and your honor its opinion reinforced that because it remanded to consider that point in the context of something else the applicant's characterization the prior art in the three twelve he said not only the reference examiner is relying on but no prior art known to me has the civic launches undulating wanted to do therefore cure had to go made their arguments to the jury about the there was no crest because it had to go up and down and the jury either simply rejected them because the crest doesn't have to go up and down were it looked at there is simply no excuse for boston not raising this issue prior to jail i heard counsel say no never heard the word wait the highest point of a curve until trial  making exactly the same point the word point doesn't show up here but in tribute any significance to it one way or the other we made it perfectly clear prior to trial that her and freshman case was based on the nearest isn't what we thought it should have been we did ask you to revise it to say it crashed must be in a parking curve they didn't do that then we had the trial and council says this is the first time they heard i can't believe that the possibly be true in light of the summary judgment briefing meaning that there were a trial they heard they heard us say that the crest is the highest point of the curve they know the judge is going to instruct the jury he has dictionary definitions pressed is the highest point of a curve that's the dictionary definition this was the time before the jury went out to ask for a change in the claim construction they didn't do that they did nothing until we had won the case they came back on court as questions of the court remitted to the district court the court took a look at the questions on which three men were directed which was was there in fact more detail on intent to deceive in more detail untainted she took a look at it she considered it in part in light of intervening case law i think most notably starr scientific she concluded that her decisions were incorrect she reversed herself rather than face reversal by this court and i think that was perfectly we have not taken an appeal on the three to well but having come to the conclusion under controlling laws that inequitable conduct was not warranted on the facts that she found she thought it was a reasonable exercise of her his life so he i think there is that practical impact in terms of litigation i don't really know litigation pending with respect to it it's obviously been under a cloud ever since dr robinson's original ruling and i don't