because it did not use the common meaning of the argentine or when it began its analysis what the court did instead was design a new definition based on running an adjustment generis analysis of a  definition that happened to have a list of none except not exclusive list of examples of what would fall within the we would fall within the meaning of container and that was the fundamental  we before we get into that argument with respect to air or the air do you just agree the court of international trade as i understand ed said we're going to look at that what the essential characteristics are here and it came up with four kind of categories organizing storing protecting and carrying my right so far yes john does the government take issue with respect to that your honor yes with respect to those four categories we know that this court has used those four categories in understanding the just in generics analysis for heading forty two up to both the first portion of heading forty two and two as well as the second portion of heading on georgia because that heading is broken into two pieces colon and that second portion is actually circumscribed by the materials of which those articles are made the first portion different set of exemplars but it doesn't have that type of living factor of what is your material this court since totes even before so it's back during the two sisters in understanding the predecessor heading which dealt with travel bags and those types of articles looked at four factors organizing is there a single case that you can cite where we didn't require that all four factors be satisfied your honor of were aware that that they were required or not required they were always mentioned but there are instances where this court has used the word or and the reason the reason that they were never actually set up but we've also never had we've never endorsed a factual circumstance in which all four were not sat car and so it doesn't really consider that the handles are playing the role of carrying because it's actually sitting in the trunk of a car and being conveyed by the car so that there's there's not there's not clarity that these four five line where we said we have previously held that the quote a common characteristic unifying purpose of the goods and heading forty two to consists of organizing storing protecting and carrying various items it was it when when one talks in terms of a unifying characteristic the court didn't say that it was mandatory that all four be met but rather that these four factors are somehow a unifying characters of the heading and it also it that's an example but not that all four are mandatory but even even if it's not even if all four are mandatory and i'm not sure i agree with you that we haven't said that they're mandatory in the past but even if all four work mean mandatory if you are if you're looking at it doing a similarity analysis you'd have to at least say that it's what you have to have more than one you might you might say that your honor but i fundamentally the meaning of the word container has been defined to mean container store and also something the holes are carries so the two of the factors are factors that are almost inherent in the meaning of the word container so virtually all containers will understood by definition coming meaning that they do that they do hold within they carry something within themselves and that they store because if you're holding something within yourself unless you are removing or using the article that's being held within leisure actually using that article when that article is not so the fact that it can store contain it's doing that simultaneously so there are the fact that you're not using your article at that exact moment in time if you set it aside the moment it's set aside that container is now serving a purpose of storing because it's not using the articles that are being contained by the container whether you're moving them from the container whether you're using them in the container when you're not actually using the articles that are being contained then at that moment in time they're being stored because the common meaning of a container is to contain or store articles so it's actually in the definition  an item of putting it into something and putting it away so they're no longer really using that item some cases we're talking about here you can to the extent this is a case or a a camera case and the camera case is not a camera bag where you throw the camera and film and things like that and the actual form fit it case that goes over a camera it but cameras not usable while the case is going over  if you if the case is open or in some instances now there are cases that are similar to the cases here where the the if they're made of plastic and they see through and you can attach you can swap out an attached the lenses will then there might but we're talking about things that are normally understood and i think for camera cases the normal understanding is that you've got a camera in a case when you want to use the camera you knew from case i'm not going to dispute with you or debate with you with that it might be some conceivable products on the market that allow you to use the camera while it's in the case but i think can one not fairly assume that when we're talking about camera cases we're talking about something in the story in that case and removed from that take it off and snap a new one in those camera cases actually came up and over the camera and they clipped on the top you would then open it and it would hang down and you would use it while the camera was still inside the cage and what we're talking about here you don't have to open it it's in the case and in order to be functional it's just and it's normal that there's no need for opening or close there's no need for opening or closing your eyes and that's something that differentiates that from the camera case no no your honor because while it may differentiated from one style of camera cases i'm referring to but there are as technology moves forward you can have cases that surround a camera that we provided samples to the court links to types of cases that customs had encountered one is where there's plastic that surrounds the camera but it's usable inside has a chip they're using it underwater for underwater photography right isn't that more like an accessory than a case though i mean you're stretching here to find one example that you think might be able to you could pull out to somehow say that these fall within that and again those are things that probably are technology that has post dated the original adoption of these categories so if we want to look at what these categories were really intended to encompass we should be thinking about camera cases at the time that these categories were laid out and those camera cases are clearly the kind the judge throws was talking about where you have to remove the camera from the case for it to be operable and and we've said not only is the question of do you satisfy these things but also it is there not another category that is that is more appropriate the way to interpret this tariff these are either nominee or never said they were locked in time but i said if we're trying to determine what the factors are that would make them similar we should at least consider what they were considering when they came up with those factors and those factors that this court has repeatedly endorsed and considered right your honor and this court has never endorsed that you have to that the article has to be removed to be to be used so that's not a factor this court has considered the only four factors or never considered are organizing storing protecting and carrying and as we've said earlier that the so two factors of stor and carrying are inherent in the meaning of the word container so organizing and protecting now are the two two items that aren't in her in the meaning of the word container but they be it's possible for the factor moment of the life of that particular article it may be that sometimes it's protecting sometimes it's storing i mean a trunk if a truck has to organize carry store and protect that has to do all horrid things at all times then the minute you take your art pulls out of the truck the truck stop doing their job and stop being container that makes no sense it's still a container so i mean to say that all four factors for a container most simultaneously exist and be occurring at the same time i think is faulty and i think that's where there is tension in saying that all these four factors are mandatory within and maybe they're mandatory but it different moment and it also uses the verb contain to divine to define container in advance it's position it never before c i t or before you in this breeze defines similar container because that's what we're talking about here we're not talking about the container that could be on the ship we're not talking about a container that could have propane gas in it or a silo that has silenced or other types of agriculture materials in it we're talking about containers similar to the exemplars to the left of the semi colon in the heading forty two o two that is a wall and you cannot cross over into it as the government also did in this reply brief by looking at shopping bags and jewelry b now the point is is that this appeal involved very simple and very intuitive issues and to me it calls to mind this court's trenchers observation of politics case and that observation is the hard to determine something any consumer can tell well in this case the court need not strain the heart of all and i ask you a point that your friend was kind of going committing on which was that the story issue that like the trunk where it stores at some points but not when using the clothes that are in it her view as i understood it was any time we're not  s calendar alerts emails if it rings i can see that it's a call i can see who's calling it what i think her point was but there might be some few moments in a day at least where none of that is happening so in those few moments when it's not ringing buzzing or doing anything actively is it performing the function of story i would disagree because the the the point is when the judge at the c i t made the point she said the essential characteristic or purpose of story implies some future use as opposed to present storing is by definition inconsistent with use the phone whether it has a case on or not if it's off it's not storing itself it's just there the same argument for carrying the phone they the case is not carrying the phone the phone carries the case if you will so i don't i disagree that that th me all four of these criteria or is anyone to fish and whatever what is your position on we believe that that while there may not be a dish your test and i think the court this court and when ron made that comment about toad said we didn't express an actual court must identify all of the characteristics that unify the exemplars all means all you cannot discriminate you cannot say we've identified four or only use one in this case we used to in that case maybe we'll even think about three in the future all of these characteristics unite the exemplars and if they're missing in the merchandise that's under consideration especially where it has a specific  yes you have to consider all of these factors because they are that then unifying factors and the court could find that well three out of four are present here and as to the fourth it there's nothing inconsistent with the fourth  in that hypothetical potentially but i don't think so because here would trumps everything even if you found all four characteristics in this side of the fact that it's one hundred percent accessible one hundred percent of its functionality is usable while the electronic device is in the case is something that is not shared by any single one of the exemplars in council though then would you agree with the government that that's it factor there were are now applying not at all that's that's the victoria secret because the secret did not come up with this inconsistent the specific and primary use is inconsistent with with with the the characteristics or the millions of products there are millions of these products that look through on the internet came up with three examples one is exactly as you said your honor it's an accessory for camera when you're using it under water when you come up take that case and you use it just as you what the camera case the leather camera case that if you go to the link and look at it you have to unsnap it from the back and then use and  top and the lens and take the lens cap off no less and then to use the camera if you look at the user comments in there there's other functionality problems with it you can charge it you can i get to be the memory card that's  look at that link it talks about it's completely enclosed the binoculars you have to unfiled it remove the lens caps from both the front of the lens and the back of the lens and then you can use it in they are of like it's hanging but the users say in the article criticizing the fact that it's difficult for some people because your nose hits it and it's also difficult to do to use the focus so those are unavailing the fact the matter is you have to open those products to use it just like the exemplars in the first part of heading forty two will tip and the fact the matter is that no reasonable consumer i don't see any reason said that it's what comes into the mind of a reasonable consumer what if they see similar container in that use them generous analysis and they look at those exemplars what comes into that reasonable person's organize items in the case for example spectacle would you say that maybe spectacle cases serve the function of storing protecting and caring but they don't necessarily organize spectacles of the spectacle i mean or i could pull out my spectacle case i can look at that spectacle case i imagine are people in this courtroom spectacle cases that have lost in there and other items let's just think one article and case right generally yes that's correct yes yes and so your point is that it even if some people only put one thing in their eye glass case in case you could put more than one well let's just say this to take your hypothetical further let's just say that spectacle cases don't have an organizing characteristic to them and ignoring the fact that a healthy minority of the pretty good majority of people do have other items in their it's all of the exemplars so if you just find some speck the cases don't have an organizing factor because people don't put something in them along with their spectacle then then you have all these other example ours that have numerous things and i mean that the holster has clips and bullets the camera cases extra lenses and when caps and s d cards and cables and straps and so on and so forth you can go on and on and on and on and the everybody in this courtroom is in at least familiar with most if not all of these examples and we all know that these and the cleaning cloth you put them in there so i grant you that you know that your hypothetical she was showing just one item in their name not implicate organizing in the way people normally think about the common in commercial noon that the dictionary meaning that you your r s just went through in the clear correct case come to your decision the point is is that this is what comes into a reasonable person's mind and a reasonable person's mind thinks of these items as storing protecting organizing the fact that they don't all have those characteristics going on at the same time twenty four seven is not relevant to the analysis they all had those characteristics they all have to be considered they all have to reply if you want to express an actual legal test farrant but i don't think you have to because your case law says that they all have to be considered in connection with heavy forty two o two and that's something that the government refuses to acknowledge and they continue and they always will refuse to acknowledge what the similar containers because even with their definition of contain the verb it refers to a can of oil every kind of oil i've ever dealt with from the old style going to be a puncture through with the  products that are closed receptacles are not trash cans they're not in boxes and not milk crates by any stretch of the imagination thank you here briefly your honor others complaining about the government not understanding what similar containers are the government analyze this case as first what is a container similar container in the context of heading forty right now these four factors question of course is whether or not they're all for factors and i would i would argue your honor that they're not the issue of storing talking about what that means the meaning of of storing other argues that we're conflating somehow that meaning with protecting we're not we're seeing mean that we put before the court same meaning we have in our briefs here the trial court as well as here which is storing means to put something that is not being used in a place where it is the role of storing simultaneously with protecting the other thing that's interesting is we're dealing with technology technology is changing this is a new device that's that's come up this is a personal device like a like a pair of binoculars or like a camera even it even a small you know electronic camera you can ratan the go pros have you know plastic to go around and the cameras inside you can use it and you wife i will send the signal out you never have to open the thing beast technology is a car or if you have a problem with your battery or you need to do a restart there are some times you may want to take it out but the core of the truck which right honest correct in saying that the stays in there in a semi permanent fashion but that's just the nature of the technology there is nothing the fact that it stays inside it just happens to be the technology allows it with more significantly taking it in and putting in our open normal these phones are thin and they're very expensive and if you drop them i would prefer to keep my from always discuss similar we did and once again the fact that the state inside the container is not into insists that with the four factors in fact it enhances the factor of protecting thank you