significant discovery and that and the decision was of firm going to appeal it was emotional appeal for sanctions that motion was denied by this court so all that remains in the case is ruhleben sanctions in the district court in the district court said we violated all the relevant canons of claim construction and that's not correct that says we follow the relevant cans of planar structure and in particular we relied on the plain language itself in the context of the surrounding language of the claim we relied on the specifications both for the optimized sizes and as well as for the purpose of the invention and in our brief without arguing that we were right  claim construction here today the only question is whether our claim confronted on the problem that when you file the complaint seeking relief from a construction that's separate from from what the in the the record shows and what you ar doing during the prosecution of the of the pan not all your honor i think that the the complaint was filed on the on the same theory of infringement as was presented in that in the district court the court in fa says that the flaw in our preceding that gauging which is a separate issue in the second circuit but the flaunt recent investigation was that the record shows in fact that it's the same claim construction and the same little infringement arguments that the court overall issue a claim construction is one of the court has wrestled with many times and that is whether you've convinced whether you construe the claim by importing a limitation from the spec which is barred or you read the not no narrower you're asking for the exact opposite and you added the term during prosecution so i think it's what the trainer was sort of alluding to by clearly which it is you know this isn't a random term you added it during the prosecution to overcome prior art and now the only possible i mean the court said it's clear to the naked eye if the difference is apparent to the naked eye it isn't clothes the accused product clearly does not have a slot that is nearer than the diameter of a rod so i understood the district court problem to be this claim construction isn't useful as a plea reasonable and so why i  that antecedent language to the language of the court just recited is when the portion of the container is folded over the rod so it the dealer this invention or only works in the context when you have the container folded over the rod and because you're pulling it over the rod before you engage the sealer we we argue that we argued below that the slot being there or that i am of the rod really means narrower than the bases and the consequent bases which we talk about in our in our brief the sealer being only sliding mounted it only makes sense when you're really comparing the slot to the rod in the container together because the purpose of the invention is to seal the leak in the container that would be present if the rod if the if the rod and container fit come out of the sealer now in addition to that argument in the specification we talk about are both about three millimeters the only way for them to be the same about three millimeters being the same is if this language the slab being there and the diameter of the rod allows for the rod to be catches are really part of the container and so when if when rod means rock with the proper comparison between the rod in the slot is the comparison between the rod and with the container folded over in the slot then the catches which are part of the container can be can be included and therefore you can have literal infringement and we think the textron case shows that it's ok to have more than one catches for the most can't test for a term in the in the play and they're not a term in the claims there but they're in the they're only in the in the excuse product they are however  are at however attached to the container that tactic is part of the container well it was not unreasonable to argue that they were in light of the textron case on the second circuit all reasonable doubt is resolved in our favor and in the second circuit one case is enough so i just want to focus on that textron case for a moment and textron there was a strategy that was it was cited in the claim and the q s product didn't have a scrap instead it's the  trap of stream gauging another element keeping it from sliding into in the accused product there was no straps that would do that there was only a rubber gasket and there were two stops on opposite sides of that rubber gasket and the two informative the court said yes the court below the district court said that summary judgment there's no literal infringement this court reversed and said no that would be allowed to go to the jury because there's nothing in the spec that keeps the strap from that's track element from being met by the three by the three elements that are in the accused products that actually wasn't a sanction case it was a summary judgment case summary judgment w to reverse what this court did on appeal process previously which was decide the merits of asking the court to consider the possibility of the argument in the in the district court opinion and you won't find the catches discussed in terms of liberal  very clearly saying it is very has very clearly said that we haven't with that we've abandoned or haven't put forth our little infringement argument so there's no addressing of this little infringement argument there in the tanks and fortune or in the or in the prior portion you won't find the captive being addressed in the sanctions portion of the case or in the literal infringement discussion on the merits portion of that water below so what we're operating on is is kind of a of a question of whether these catches should at least been considered and then what the court should have done if it found that argument and reasonable but the broader point is that the literal infringement construing the the arguments resolving the doubts in favor of the signer we have we have a non frivolous argument on there on frenchmen and if i may like source and claim vishy agents claim that jason doctrine such as it is is a question of law what it tells you is that the jury couldn't find for the defendant or for that for the patsy i'm sorry because on the ruhleben frivolous as a matter of law just to say that and here simply being wrong is not enough and i would be wrong as a matter of law is not enough in fact this operative's argument that we've been having is is reflected in the voting case which came out the other way when it occurred portion of the  of the expressman surgical instrument i believe was a guide catheter was met by the claim limitation for a straight portion and even though those two were allegedly opposite the the court found that the jury's decision that the infringement under the doctrine of clinton was legitimate and we are devoted to the district court in light of these other cases not addressed in the opinion below but it's a it's a case that in the briefing that goes a three seventy over to three seventy one to come back to record in the record yes in the records where we discussed whether or not allowing the claim limitation would  from all they please the board let me begin by addressing the claim construction issues and they're particularly important here because as a as judge me and found claim construction was the only basis on two the terms are just mathematical narrow and direct diameter slot rod are simple terms of there is no dispute about their construction there was no in our view there was no real attempt to interpret the meaning of the claimed term in that in the sense that in the normal sense of the word interpret there is no contention by source no real contention that any of those terms are big us or that the phrase is ambiguous there was no argument in the court below is correct so instead they just inserted and new they said eighteen a plus b that's a simple as it is as it is and that was the only argument that they that they distinct terms with the six meanings and they're used throughout the specification as distinct terms so there's no there's no vishu with the specification  i'd like to just briefly address the literal infringement argument and there's a lot of that report from the briefing and i don't care to get into it but even if you had several sources construction the problem which is just we believe that even that is smaller and there's decorations to support this is not disputed that that smaller they're referring to the sketches which are way over here they're not folded over the containers so even under this frivolous claim construction which  here on a rule eleven sanctions a war where you've got a giant pile of money directly from their pocket because they did something so frivolous and wrong a lawyer should have done it and you stood in front of me twice and said that they never opposed a rule have been awarded below zero point any basis other the claim construction you said it twice and even the first time i thought it was wrong but i said nothing that's why i've been picking back and forth with my love for you are wrong you just whatsoever there's a separate standard for a motion for reconsideration for material that submitted after an order and they have not challengers not in their briefs my understanding is they have not challenged that the court didn't originally the argument that the catches cannot be did the rod or its equivalent for many of the reasons that were mentioned earlier they're on the outside of the container there are six of them instead of one of them so there's not a first and in the second and it doesn't span reasonable that particular argument isn't reasonable is the supreme court has required an element by element analysis they have not argued that in one of the claims limitation we're talking about a academic debate about whether they're obsolete or not in that case the court found that they actually were quibbling from the context of the tax here there's no argument about that they they are focusing instead on putting these different elements together in the problem of that is that when you had to respond to that and also process moves but basically the process motion was a label wasn't any additional work so the reason that this wasn't very inexpensive was because the plaintiff chose to make it that way why couldn't that part of indiscretion the district court look to the disparity between the parties and you know the motivations for potentially for the litigation and the harm it might have called i mean i'm not positive t if i may or just a few brief points this case the rule of thumb briefing in the summary judgment briefing were going on at the same time during this case so when we referred in our rule eleven opposition to literal infringement doctrine of equivalence infringement may not have been fulsome but i think it a seven four four you'll find us arguing it at a seven six five is the affidavit that we're incorporating when we argue it's it's brief but keep in mind me you were going to take care of patients and there were five there were two there were two amendments at the same time though that at the time they were facing the one twelve one of which overcame the one twelve and the and since is the court's obviously already found it was i'll just refer to  pages three hundred and three twenty for the before and after and then three twelve for the argument presented if i was sorry i don't have that right but  it was frivolous to argue that now we argue the case to the district court that was voted off the show that there is no iron rule that opposites cannot be met our own argument which conforms to the optimize construction with not wider it was narrower but with the fact that when you discuss the comparison if you're including the rod and the rabbit in some