the panel have before it to keep being submitted today without oral argument on the briefs namely appeal number zero five dollars thirty two zero nine five be on versus united states postal service appeal number zero five thirty three seventy four teka lever's is general accounting office the first case on the argument list of athletic alternatives appeal number zero five honor there are just kids of a fairly long history or quite aware that it's been in front of this court misjudging particular there are several reasons why this courtship reversed the findings of the district court and send it back serve it on the defendant when we did the did the joint statements the parties stipulate assigned the the joint statement that indicated rules our service shows that we serve the complaints in the jury committee they say they didn't get it i'm not in a position to say they didn't get it i don't know for example i pad cases your honor we have served a ten here precludes in the jury trial what can we do about that your honor i think that when you look at the recent opinion such as blakely what was the supreme court's talked about fundamental rights to a jury trial that this court can conclude that you shouldn't ask waive a constitutional right to a jury trial a civil action where there is an allegation that the service have just been given when actual notice was given where that the party who is likely the either you you have to prove compliance with the rule or this the intention can succeed your honor it is literally impossible to prove compliance with the rule when one serves it doesn't come up for five years in the meantime everybody acts as though it's been circling the parties even sign documents that indicate that it is that there is a request for a jury trial nobody's raising this for five years what are we supposed to do is planes normally we have the questions you're not the council i and i are you are you arguing that there is some legal beef is worth saying that if the lack of service isn't raise her some period of five years that somehow that overcomes the requirement of the rule in the case under arizona law there is the concept of continuing continuation that every time there is a breach of the contract it's continuing breach in the statue i notice of the particular claim that i will equitable stop it will apply and then the third argument is that the statue limitation was told under the facts of this case if you were under the law require that the authority requires that there was a tolling when the judge or the district court judge stayed all the proceedings a couple of times one while the case went up to reexamine ation the party stipulated that it was going to let me make sure on this the scolding issue that i understand your your your argument you're saying that as as soon first action was filed that the statute of limitations had been complied with and that when that action was dismissed and a new action later filed protection without prejudice with respect to this claim a new action is filed that the statute of limitations cannot be invoked once it has been satisfied by the plan of the person action it could have been satisfied that we had not filed in a timely manner for instance timely the counting from when counting from when this action had been had been decided for instance it was filed  those four years from the limitations period that  of liberty is said to be i understood that the limitations of the claims involved were admitted to be present plainly prior art except for one limitation that right i think there were two limitations but there was at least one and made it clear that the answer to that even because all of the prior art records had even numbers of mainstream that's not exactly accurate records found that the vendeans experts said that all the records that were being sold in the market the united states had even numbers strings when you look at the martell patent which is that a fifty one forty one in the appendix  martel the way the springing goes in it when you look at that the a string started it at the top of the plane on one side and has to end the top of the plane on the other answers i was going to get to this last but since it was a feature presentation of the a power i just want to confirm that just marry your understanding with respect to the jury demand is correct before the district court athletic alternatives never contended it never disputed the fact that they had overlooked the out of the service and had not served and they finally served in july of one nine hundred ninety nine and three months later in the next paper repeal is based in large part on arguments that are raised for the first time on appeal for example before i say that i should say that a large part of this case was this sideshow allowed to put that on in the end she got it right just as senior judge scares me strand had got it got it right in the earlier rulings for example dismissing the breach of contract  case with respect to breach of contract on appeal but alternatives argues that in prince's nine hundred ninety nine summary judgment motion we did not we did not raise the argument or point the evidence showing the lack of it alternatives council when they determined that it was with without merit and that's because suppose a trade secret was the pending u s patent application which was secret but the p c t counterpart at been published well before they had transmitted any information to press with respect to the tolly there was never any stay of that first litigation a what alternatives had was had years to take whatever also with respect to the claim for a solution argument this is an hour this is a theory that they're raising again for the first time on appeal it was not raised a lot while you're asserting that their claim because we're certain th which struck me and now i have to say that my impression is always been that without prejudice means that there isn't any claim preclusion without regard to whether this is race in the same action or later action whenever case and that is the general proposition that a dismissal without prejudice means that the pardon who has suffered a dismissal without prejudice is entitled to reply i'll in a subsequent action the same claim would you agree with that proposition knowing your honor as i understand adopting a plain view you are you familiar with restatement section twenty restatement of judgment because that that states the rule and let me what is it exactly that distinguishes this case from that proposition object to be that the distinction of the one nine hundred ninety two case went to final judgment which was affirmed by this appeal in what you are you're referring to  contract was part of the same transactional facts as princes design and marketing of this allegedly infringing practice they were required to raise it as part of the lawsuit and if they didn't and that lawsuit went to final judgment then under the document claim persuasion they can say ok we lost on our infringement theory because the federal circuit found was no infringement now we're going to go back on the same transactional facts and argue make  different argued on a different theory namely that they breached secrecy agreement that would that twenty if they were to assert it had to be part the first lawsuit because the first lawsuit went to final judgment and because  that that you when you sue you have to raise all serious or the right thing the question that we have the course here is whether there's an exception to that proposition when the trial court allows the case in this is something that is not before this court because it's an argument raised with the first time on appeal and under the sage product caissons many cases after that this court says they will not entertain arguments raise for the first time on appeal judgment as it was under the document claimant solution they could not file the second lawsuit on the same transaction fax arguing that there is a breach of contract so it would seem to me to be illogical to say that they couldn't do hack that they can do that if they actually do sue for breach of contract in the first lawsuit and then drop the without prejudice meant that judge strand was saying to them ok if you find any evidence of this and want to research it in this war so i will let you do that and that's all of that without prejudice means with respect to the claim three infringement issue  the district court found there's no infringement on two different grounds and on appeal have political turn to do only disputes one of the two so even and that is the the the second one which is that there is only a single splay distance along the foot sides of the rock but the of the other ground the the other limitation of the district court found to be missing is that and this is in for example in findings one thirteen  fourteen is the district court said referring to the language of point three that they claim of cars that along the sides of the degree of is must be greater in the regions where the strain be answered longer than in the regions where the string ends or shorter and the district courts correctly observed that in the accused records the regions where the string answer longer or roughly in the three and nine o'clock position is that it's twelve o'clock position of the rocket and she correctly observed that the degree of splay of the three in the nine o'clock positions are regions was specification describes the corners of the racket as we as the place where the string answer too short to support for spoil a and where the splayed distance is reduced in order to facilitate  areas but not with great specificity and then the other thing that seemed to be part and i would like your take on this was the best line that goes around the playing surface it has horizontal a reas at the tip in a heel it has a vertical area roughly along the sides and then it has a forty five degree angle for forty five degree angle segments is do you think that tells us anything as to the meaning of corner that or the letters tell us anything about the meaning of corner in the context of this pattern we didn't argue that the writer because i agree with your point that these may not be area larger than a specific designation particular saying now let me ask you one of the question on that line if we look at the term warner as being somewhat general term without the kind of specificity that either the district court found or that might suggest a period strings might suggest would it be back as opposed to a an element playing construction for the judge to have concluded as she did that second that string sixteen and seventeen are not within the general and then the question of whether in this racket that's the reason the the claim has a lower spot let's play is it is a factual issue that factual issue is not disputed that that's the reason it has less play because it would have a one zero seven five they actually look at figure one and they talk about where the sides are and sides are those that only have lateral strengths and they're looking at the figure one in contrast  what strains are going to be in the corners and what strings are going to be in the sides additionally there are experts in st david's in this declaration that was attached to the construction under the  trouble in describing the corners in the sides and they hold him out to be the expert in this area he says that this medium quarter suggested by figure one the one that the chords just