network. The deposition testimony of Dr. Richard Nemes suffers from the same flaw.” Id. The evidence we found lacking was only relevant, however, because this court changed the construction of telephone terminal to require a function that the district court construed as a separate limitation. Such evidence was relevant to a different limitation, and that limitation was not before the district court because of the limited nature of Overstock’s summary judgment motion. In the situation we faced in Overstock, we should have reversed the district court’s construction of telephone terminal and remanded the case so the parties could present new evidence based on our fundamentally different construction of that term. See Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306, 1324 (Fed.Cir.2008) (<HOLDING>); Bowers v. Baystate Techs., Inc., 320 F.3d
holding that the failure to properly instruct the jury on the burden of proof required a new trial holding order granting a new trial is not a final appealable order because it does not terminate the action or any of the claims or parties in the action holding that the presentation of the adopted construction to the district court constituted a waiver precluding the party from proposing a new construction either on jmol or on appeal holding that despite the occurrence of a fiveday jury trial a new trial was required because we have adopted a new claim construction on appeal and this is not a case in which it is clear from the record that the accused device does or does not infringe holding new trial should not have been granted because jury was properly instructed