more i think this is a rather interesting and unique situation that we have here because we have a situation where we have a proof egypt got us plane construction they were environmental they are distinct to the descriptive of the designer but they are primarily a function and i didn't see any argument below indicating that they were comps and all and i went back through all the documents even the you can do it you can do it not her looking will be going in the meantime so ok so we complete new you now have let go of the environmental issue that's no longer part of this appeal you're not arguing the dashed line are environmental in the sense of the m p e p use of the word environmental but rather functional we are i position is that the dotted lines as you call them or the stitches that hold kind of unique stitching is just a straight line stitching is not doesn't have any real distinctiveness and i think we were very observant looking at the sandal would understand that the stitching is primarily there functionally to hold the  l and the cushioning together well apart from no possible way of view on the functionality argument nor precedent clear that considerations of functionality are directed to the to the designers of whom not the individual features and also where there are any number of different ways in which to accomplish unction not familiar with the law you're expressing about the functionality being of the design as a whole and in my view and my understanding is that you have to look at each feature determine whether that feature is a functional feature already or the metal feature of the design and i think that's the distinction that the cases make between things that are ornamental and things that are functional now a design can't be totally one of the i guess it could be but most designs have are products that have some function so this a lot of you say has a function but the stitching itself could be any other form of stitching it doesn't have to be a straight line stitching it be it could be across pitching it could be they could be hammered to they could be glued together so i think the particular form of placing the the soul in a cushion together the stitching is in fact a functional aspect of the sandal and not particularly many but it was particular situation with a standard there are so many different ways that a same goal can be can be shown can be design that obviously a sandal is is a product that has ornamental features in this of the sandal those are fusion if you would look at sandals as a whole in fact my client's website probably has hundreds of different samples so the design of the sand is not dictated by the function of the prophet the design of the sandals dictated by the ornamentation that one places on us and on this that's why we believe we have a very valid and enforceable design appears to be functional therefore it's not hard to design good talent appears to be purely or mental therefore it is the design and that seems to me to amount to parsing the design quite substantially because an awful lot could be said to be hunk tional right the shape of the overall shape of the thing and dole which of course mimics the shape of one foot the fact that you need straps where you do one between the tell all their work if you didn't have them you wouldn't be able to actually hold the sandal onto your put it just seems that if we sit down and start parsing by anything that could arguably have were thirty function that we would be going down a road that made it pretty difficult for us and for lower courts to figure out which aren't the design aspects that are protected bill and which ones aren't so i could kind of understood archy fall off though is suggesting function functionality re something you looked at with regard to overall design not a parsing of elements so tell me why you think that we ought to do it on a parsing development approach which seems to be what you're advocating well i think that's what the lower court did actually i'm not advocating that i think they took every feature functional or for a minute and wrote them very nature by their very shape defined the utility and those products are not subject or can't be subject of a proper design pattern the very short of the product is defines the utility certain way in a different way and ignite in a number of different ways which suggested that not that a particular way of doing it is not primarily functional but has ornamental attributes well let me go back to the first part of your comment about a sandal being dictated by the trying to be in the form of the of the shape of the foot i think that's true but i don't think that answers the question because we don't have a design or one and well said we have to design bad want to particular sandal that has particular ornamentation accused to something that's because they do it that's correct so when you say necessary it's not necessary in the strict sense we're not essential there are movie you're absolutely correct you are there there are normally one would assume that when you make an election to include particular things in the drawings that are part of the design or eat other design claim that they are presumptively part of the  underside figure seven why show it why figure seven and all what what this figure seven tell me about the ornament telling you this thing is it the heel then because i mean i'm just wondering what the purpose was including figure seven in the pa fact probably all those why there is a view of the particular product from every potential in the top of the side from the bottom even if the bottom holds what i would assume you would tell me no warning mentality because the only thing you can see from given that clearly some manufacturers do believe that there is a value to the decorative i mean they'll make it a contrast in color why not put the onus on the patentee when he's going to include something like that in the picture like the m p e piece ingested leaf does too if you're going to include these dashed line you have the obligation we're going to consider them part of the design unless a new patent see who's the one drafting the patent you have the obligation to make it clear that you don't consider them part of your design why not put that onus as a power pretty matter one the patent holder since they have the ability to make it clear i don't disagree with anything you said rather i would only say that in twenty twenty hindsight i wish we had  did they raise the functionality if you below they did not you never at any point it was not raised as a functionality issue and i i wholeheartedly agree with the court's observation that from a policy standpoint the m p e p should identified that the fundamental issue here is what will we have a trial for determination on claims structure but we have a host egyptian goddess determination we cannot think of a better example of this court's guidance in the good gyptian goddess as it relates to claim construction and what the court did hear that is that the court identified three questions of law such as patent convention environmental were these lines functional that was a determination of the lot it should be made in a verbal description as opposed to what is the preference under gyptian not us which is merely to provide a picture of the shoes so if the district court consider whether the line for functional would you be arguing to me then that you think it is or is not waived for purposes of the peel it is that you cannot acknowledge that it was a well whether it was raised by them or of the district court's own imagination in either event you think death of the district court outlined a consideration of whether the find her functional two points first we believe it has been away for all purposes but even if it's not waived because the court took it structure case second by virtue of their application of the ordinary observer test the trial court did not render a decision which was clearly erroneous and finally the partial summer judgment on the marking statue was appropriate as there was no human issue of material fact the issue of whether or not could meet that constructive notice test i briefly addressed the construction the ordinary observer test and then the partial summary judgment there seems to be a dispute between council as to what the appropriate standard of review should be for the claims construction side to side or decision bernard asserts that the claim construction should be reviewed by this court to know while clearly a question of law exists concerning the construction of a patent the cyber decision related to a utility  of prejudice actual prejudice associated verbal description that they would not disturb the trial court's decision to enter a verbal description relating to a design pattern and indeed it identified several reasons why several concerns while a district court might want to include a verbal description first and foremost of those types of circumstances including just the need for the  determination as to whether or not certain elements were functional environmental needed to record those transactions record those processes and accordingly a burble description in this case was necessary a court to set forth a verbal description there is no allegation by bernardo in this case that the verbal description is in any way in accurate it describes perfectly the same interestedly the claims construction submitted by bernard in this case comprised of a green a large head not in wraps straps accurate and because there has been no showing of any prejudice associated with that verbal description we believe that the court did not buz its discretion so whether this court ultimately adopts  review concerning verbal claims construction in design patterns or whether consistent with the gyptian goddess it believes that abuse of discretion with the showing of prejudice is the appropriate standard with either standard fortune's final judgment should be a four or over in this case the court didn't block the corman the ordinary observer test after a full trial on the merits before the judge the court determined that there were significant differences between the accused design and the claimed design and that the ordinary observer whether it was as asserted by bernardo the consumer on the street or as asserted by fortune a retail buyer of shoes that they would not be confused or deceived into believing that they were in fact but not  plane design when they were by on the fringe and of course now that significant similarities the first and foremost of watch which was the decorative stitches the court went on to point out that the differences in the hole a not a verbal claims construction would be appropriate as it relates to do whether the stitching itself should be part of the claim design and for the public policy reasons articulated by the score we believe that it should that is by definition a design patent only speaks to those on the mental features and if it was the intent of the patent the in this case to be excluded that it would be absolutely no purpose putting dictated entirely by function at the discrete element it's only of the overall i'm trying to get to the bigger legal point which is for our purposes does our president indicate that you only consider functionality for the purpose of determining whether the overall is entirely functional or most dominantly functional rather than ornamental or can we look at a particular element in turn and functionality i think the cork for purposes of explaining to the uniquely qualified to to make those legal determinations as to the functionality in ornamentation here i think there's a bigger policy question because when we look at the design specification everything concerning that set forth in that specification and the stitching is there it is our assertion that because the stitching is there it is not functional i put maybe i misunderstood your answer to get more but i thought you were heading down the path of saying that with this issues because at the district court level there was an issue before the judge as to whether you could parse those out and the question you need functionality on functionality that issue was presented to the court i'm sorry the issue functionally was not presented to the court at the lower case look at now i'm just so so back up and and group lay out for us the what happened in the district court and what your view is has to the role of functionality in assessing individual elements of the claim the trial court considered only whether the design of the dotted lines work environment and therefore included a determination in the verbal description that they were not environmental and they were part of the plan the larger question is should the trial court had discretion to parse out had it been for sent to the trouble for the dotted lines and  assert that yes i think there is a situation where the trial court in its determination of the claims construction may be called upon because of the dispute between the parties this case that are and dotted lines are by definition i think assuming they're right and such part of the design anyway whether because of functionality or what they're just part of the environment they show the rest of the bottle to which the design which is the top model let's say is the tach right so i'm having trouble understanding the point you're making about individual elements being functional if they are marked with dotted lines because the god light didn't it's irrelevant whether they're functional or not they're just not part of the design right they are they're part of the design and because they're ornamental they are part of the overall let's say could have been dotted lines in which case you wouldn't matter with the centrals looked like everything would be focused on the strap correct correct and whether it's from she was whether it's that would not be just to sort of question of functionality court case that came up before gyptian got us and that's the latest plus case where i think the judge in the northern district of texas got it exactly right and he basically said citing with a description of what those parts separately looked like in early the most general terms without knowing the ornamental features that produced the overall purest of design and i think you could read into that