going and if you're happy with how that issue got results you believe the district court got it correct when he said first the ability is limited to as an exception for example means plus function in a couple of other things but not a general k and the reason you let him go astray was by not pointing out to him that vishy a shim is a subset of the very issue they stipulated to that you let this district court believe by not pointing out to him to the contrary that this was a different issue that he should have phrased since so you might be right on all the issues you're arguing but quite frankly part of the reason you're here is probably because you didn't make it clear to him that he shouldn't go there that conclusion that maybe there would be an advantage in the question one way because he could not and i think i'm wrong or i think i don't give a damn about what your simulation was i think i have the authority to mow down the stipulation and the second levels you acknowledge that it doesn't apply you want to expand the foreseeability exception that applies in other areas as it relates to the word exception your honor i would agree fully that we are talking about an extent  responding to do appeal that is based on the stipulation alone you are through but you are not challenging the district court's determination that foreseeability as a legal matter viz a viz the doctrine of acquittal and says wrong you're doing me to explain why the district court got the foreseeability question wrong the briefing below though i wasn't meaning to cut off foreseeability entirely i guess that i think we're not seeing eye eye to i feel like you're blending a bunch of issues together and what we're hoping that you'll do is flush out the legal issues that was before the district court which is under what circumstances can foreseeability of an equivalent be a bar to the doctrine of civil and i wasn't meaning to cut you off from that argument i was trying to get you precisely on to that argument and so i apologize if my curtness made you think we couldn't equivalence exclude certain structures that there is a range of equipment at one fifty two we said there is a foreseeability limitation on the doctrine of the club and that is when the alternate structure that's  ability factor alone we've argued in the alternative can be significant enough that it ought to by tension exclude operation of the doctrine of equivalence as it does with disclose but on this claim subject matter or means plus if you argued that below we did argue that below is an argument consistent with precedent the the argument the secondary argument that it's an example to him that you just articulated is that is that really what or precedent has no your honor to that secondary argument as i think i tried to answer your question before we believe that that would be an extension to not the current state of alarm much as judge ritter has proved proposing some of his concurrence is before so we have knowledge that that form honor we wouldn't say that it did this record got it wrong we would say that the district court to reach this conclusion in any one of two ways one by looking at forsee ability alone or two by combining that with the other factors and certainly not the way the justice court understood if you look  the modification was foreseeable that's the absolute use your honor it's unclear to me you know we use the word foreclosed in our brief from below many times in it's unclear whether  me or just talking to across each other i think the question the judge ran a half long time ago and i don't think he's got an answer yet is whether or not you think the district court judge erred when he rejected what you call your secondary argument that the foreseeability at the time of drafting absolutely forecloses now the district court judge shut you down he said i reject that argument now do you there all you're stuck with is that the party has conceded the equivalence the question your honor is whether we're talking about so we're about an exception to or an exclusion from and in one sentence you're talking way the president doesn't support either one of those well you're out of there there are a number of cases that you walk in arguing and you can you can argue that we should extend it and that that there's been some dissention perhaps favor that but that your honor again the man i'm not doing a very good job of explaining myself but what i'm trying to say that this language about prevent use of the dock in the equivalence could have meant two different things one is the exception to one which you don't look at it at all and  that your honor i fully agree we were talking about an extension to that it's not the law but you that we argued should extend to and the other understanding of this present you still could talk about whether this particular structure that's accused is within the allowed the scope of  i'd like to address one other fact in terms of this admission of of equivalence this this issue on for c ability places the accused infringer between a rock and a hard place as soon as we say the accused rupture is for well i'm not quite sure where to go what my understanding is that randy's is no longer arguing that the court should have to apply the foreseeability exception and i thought i heard him say that he understands it's not s alternative would have been equivalent as a matter of fact is there anything in their summary judgment briefing that indicates what is the best evidence you think in their summary judgment briefing that further validates th stipulation really means what you say it means as opposed to what they say it means because i seem to remember that you started with wanting to talk about the summary judgment phrasing in addition to the stipulation that writers would have a strong cite for it somewhere that collects all had no counter report they embraced and what they tended to do with latch onto one part of our expert reports that argued interchangeably interchangeability as a factor in favor of finding equivalent they latched onto that argument and went all in on it and through to the later stage of their briefing over and over and over again said yes it is a question and however their expert concedes it's foreseeable and we really judge raters opinion creating a foreseeability bar and they went all in on the legal arguments that foreseeability forecloses application of the doctrine of the so the reason they went all in is because otherwise they would have had to have taken inconsistent positions they would have had to him said it's foreseeable but somehow that means it's but it's not somehow equivalent and so that's what you think that they really thought the universe was limited to foreseeability for that reason that that's what motivated them to accept the stipulation and not to see anything else i think that's right to the lack of an ex for a report on their behalf of the there is no evidence to suggest the design was not equivalent but what they did have was our experts argument place to look for the citation two good examples of the underlying summary judgment briefing emitting equivalences in our response to the court's requests for supplemental briefings there we did not unfortunately cite to the stipulation but we did make the identical argument that we're making today that due to the concessions in the underlying briefing there is no room to apply claim vitiate sion before to prevent application of the doctrine of acquittal and because doing so would create claim  as a legal exception to the factual conclusion that there was equivalen