as we should here the denotable review is significantly different from the result of work the lack of clarity in some of the terms i don't think so not here one twelve six there are some limitations here but in those independent claims that were certain i don't believe there are but there are some terms that were the subject of some analysis in the earlier case because of that implicate play yes  two limitations it does depend to find this critical displacement and disassembly now i believe that the reasons why they found those limitations critical in read play in have been without the subsequent material i still believe that the five seven one patent is is free of a plane but let's let's go back to the reasons why you infringement and that's the claims are construed to include devices with no playing no very good to the errors that the judge made in reviewing the evidence is a separate issue that's the the granting of the summary judgment that i don't think he gave a proper credit to our evidence and so it would play as is some of these claims i think we have we have been pretty good and i think that it's it's a situation where the experts disagreed and it's the kind of thing that should go to the jury this judge i don't think understood he either didn't understand or didn't get proper credit credit which he supposed to do under certain circuit law he's supposed to believe our evidence and he spoke to give it to somebody the benefit of the doubt i don't think he did unspeakable narrowing of any truth for one feature it seems though with making that argument you're really taking issue with the original that if if the applicants intent is what you want to you know file history to see what they intended there is no doubt that what was intended here were claims with limitation now i'm sure mr downer what are we to make of the fact that in the earlier decision from our court there was a pretty comprehensive they're all analysis of the specification and the prosecution history and the conclusion was that the plate limitation was really an essential part of or or part of the invention was suggested by the and it was the invention that was discerned both from the specification and from the prosecution history which was considered consistent with that view and that it minutely after the adverse decision you know you're making efforts in the patent office to say well wait a second that's not part of our invention that really wasn't part of the invention and we don't want that limitation read into these  were you know this kind of things happen where a decision has been made on penton well that panda's is being decided well a case be decided by the score the response to being created at that same time i mean i think this is this is to me this seems different from a case where maybe you from him with a claim that has five elements and then during the course of litigation  element too many so you go back to the atwal this request of broadening the reissue and you say i'm submitting a new claim with only four of the five elements you're not you're not going to be foreclosed from doing that nobody is going to say well wait a second you've already conceded your invention is five wins this happens all the time but somehow this strikes me as being different if it does i outer opinion of this court those cases have significance wholly aside from the arguments that mr ocean is making because the court's case law says that even though the original ally case had not in terms of whether there would be grounds for substantive review the claim construction your honor said ray when you have a broader issue you can make arguments but it still must be consistent with the original decision and i disagree with mr roche because i don't think you can reasonably remake the alec decision and conclude that the majority panel held that play claims without play could be submitted on the basis of the spec they said the invention was clay it was essential to the invention they said that every embodiment included plate i think that decision said play is unsupported by this specification but is there no way that i could have gone back to the patent office just seek protection you know  i am a lying on the original alledged decision because i think they have not shown he throwing just by ground to ignore it but there's another point the lifton case is rez is collateral estoppel in this case that case was dismissed with prejudice there are three patents in bob in that case including the two that were not covered in the original out decision while i'll excites a case from the seventh circuit that says it is which basically says a dismissal with prejudice can have precluded to be fact so i submit one lift in precludes them from challenging this decision has to three of the patents and as to the other two patterns i suggest that they have to require play the only arguments i've heard is that we should look at is that a correct statement of your position the answer to the answer to your question your honor is that on the facts in the law the claim should be restricted to play the the the other the opinion and the other two opinions spell it out in detail is that what you're saying what because it was previously looked at we can't look at it again you can look at it again prosecution history doesn't change that i you anticipated my next accountant to get not only doesn't change it it works against alec and let me explain why in the original prosecution they added claims at the very end claims twenty one to twenty three which they say doesn't which they say doesn't put the word play they the tragedy opinion i quoted that statement and found that that statement did not accomplish what they wanted to accomplish that it wasn't to disavow all of their previous statements to distinguish over the try to patent that there had to be play and therefore they had disavowed the invention then twenty three and double patterning on the five seven nine patent and what did she say she said each of the claims calls for playing it making it clear she did not feel claims twenty one to twenty three patterning here and so what what was made clear through all of these events is the examiner did not agreed that claims twenty one to twenty three or any other claims in that case reassure examination ignore it i'm saying it doesn't help that i'm saying that it actually hurts them because though they asked the examiner to tell them if the claims include it play i think the may be disagreeing with you i submit that she thought the claims included play she was told that the federal circuit had already decided she was told that by alec she was told by all f p that every one of the all included play i think that's what her rejection is double padding rejections meant the guys with her try to rejection meant she thought they all included play and she did not at any point in the prosecution's treat i have revealed and she allowed it only after both term disclaimers were filed all i'm saying is i don't think the examiners actions support comments arguments and i think the original i think the al at the station had it right i think that the lower court decision in this case which analyzed independently of the alec decision had it right i think the district court in new up at it right which also analyzed independently of this decision one not i think it's been dealt with extensively in those decisions that the doctrine of plain differentiation does not rule a clear teaching of the patent the contrary and that there is a clear teaching to the contrary was spell out in great detail in the original majority opinion which i think is completely right i don't know if there are any other questions i know i still have see what this examiner thought about the scope of the program patents it's it's an interesting form of evidence i don't think it's quite intrinsic but within six months after the she said no it doesn't there are that disclosure and that patent application are broad enough to have disclosures that don't play and she gave specific examples of that to use product so i i think that's important the other thing is the the sooners case i don't think clearly got if there was a list of all based on the original specification and walking on the far side of the group something that's natural in any of the fire are has nothing to do with play and it was a reason for a loan for a bed which was not the subject of the all opposition at all and that patent doesn't cling doesn't