with the analyte or chemical moiety from among the thousands of molecules potentially in the test sample.” Id. The disputed phrase was present in the proposed jury instructions submitted by Abbott. (J.A. at 8006.) Abbott also stated during trial “the Court has defined [specific to] to mean particular to and capable of binding with the analyte of interest, [a]nd the Plaintiff believes that that ... claim term is properly defined.” (Tr. at VIII-212.) Abbott cannot wait until after the jury returns a verdict against it and then on JMOL request a different construction by attempting to have the district court delete a portion of the construction that Abbott itself agreed to. See Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1345-46, 59 USPQ2d 1401, 1418 (Fed.Cir.2001) (<HOLDING>). Abbott, therefore, cannot assign error to the
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 that the presentation of a new theory does not constitute the presentation of a new issue on which a jury trial should be granted as of right under  rule 38b holding that claim construction is a matter of law for the court to determine holding we review claim construction de novo on appeal 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