even were i assume even if i had grand it would have made any difference because based on my can't claim construction i still would have rulers this way with respect to that this is a cross stitching issue right that's correct so what i'm saying is i mean the footnote who says i would still rule in favor of tartus as something it's really in terms of our ruling on the grab some rejection do we really have to worry about this procedural issue because we have the judges alternative ruling in front of th the plain language of claymore and requires that in an sections in the set the sections being made a separate pieces of separate tyria it uses the word separate material there is no such phrase separate material in claim here is why i believe that's why he did not use the phrase separate material once it was or he did not use it twice he did not use it three times he used it for tolerance so the younger that he meant something other than separate wrong i don't think that's what it's for but is not the most i actually don't think it's limited to that and i don't think it's it's the most natural i think that would be incorporating a limitation that has to have a different chemical composition i see something which talks of stitching as different material that's something that's just one and i think it's natural for my everyday hard experience that when you have something that's two  nor infringement once one europe gets to a proper clean construction district court referred to as separate material is that an error i don't think it's an error and we didn't say it in the state if there's what we suggested was that it uses the term synonymously with different separate in the sense that it's it's a different composition and so i think when the court uses that phrase i can understand the phrasing i don't think it's a mistake but i think the meaning there is different material and i don't think it's at all an improper lane construction in fact i think it's absolutely called for by the first element element we don't really have them frenchmen before us but there is a doubling of one kind of material make it different i don't it like this is the results in that construction we think the district court correctly concluded that calls for two different kinds of materials two fundamentally different facets but if there is some sort of fabric that is of the two against each other would inhibit that stretching to some degree and so they're going to be less practical as my calling points out i guess it's theoretically possible that that is at what point does less stretch e become non stretchable relative to the single ply i suppose we could go in there and try to figure out what it means in terms of relativity but if there's any doubt on this point and really this is the point i think individual pieces of material if used to in steps that are found in the specification make abundantly clear that there is an overlapping and then there is two separate pieces of material one on top of the other and that's precisely what we do have a lot of prosecution has pretty this thing kind of went through quickly to the patent office was there prior art that required some of these limitations there may be and i think we've begun to look at that but obviously  built exactly as it was meant to be applied one of the things that's interesting if you read the briefs both the opening brief and the reply brief comments by mr leslie you will find precious little reference to the specification and that's not an accident if you get if you look at the word separate i think we all understand to be an individual distinct from something else and so what comfort scrappers is was is well if it is similar in nature maybe the way we should look at this well the similar nature if you take that as the definition and you apply it to this particular element it reads the words separate right to claim the reason for that is that the dissimilar in nature piece of this is supplied already by the reference to spiritual and non s fabric that's that this similarity in nature if you take that as your instruction there is no need to have there were several appearing in that first l in fact if you look at the look at the language it says this it says it includes first and second separate and sections and then it goes on to say also including a separate center section and i would submit that the patty was not making a mistake in using that word separate  two differences in that particular relevance it absolutely is calling for separate pieces of separate material and that is clear from the specification language one of the things that has made this case difficult is that this has been  a moving target it was interesting because in the reply everything submitted by mr clancy tartness was chided for using only the dissimilar in nature definition as opposed to dissimilar in identity as it relates to the meaning of the term ski through his counsel urged that that was exactly where the focus should be on reading out from appendix a page nineteen one seventeen through twenty five of the transcript these are the words and this is  that's basically our position but those were the words verse to the district court and now when we focus on the dissimilar nature and point out to this court that if you accept the dissimilar to nature definition or several end section you need to secure that which already yes now if you go the other way and you say well the itching is not great in the end section that gives them problems in the first hour because ultimately you have the same material issue that they're applying the same test a second time to convert it into a legal doctrine rather than a factual one aren't you there's a logical inconsistency there right enough yet was a lot for you to test again is substantially similar function way in result whatever you know yes and in one case if the missing element is perceived to be substantially close enough you have infringement  linking it so my point simply here is that might be the better way to go and you don't have to worry about performing the test twice right that's that's right which is always true fishy ation there's always a better way to go i'd say that but it's mr black right on the stitching that the stitch it self defines the end piece and therefore you have a difficult choice to make as to where you decide what you decide the calling and piece an independent claim if the claims use different language that happened for them to be different and we explained that in philips and said it worked with dependent claims but not so well with independence the other point in clos