may please the court and the district court put itself in the place of the jury and result to sack questions each of which was disputed immaterial to its ruling on the design patent and for that reason the ruling should be reversed so that a therefore susceptible to some good judgement well well certainly design time cases can in appropriate instances be susceptible to summary judgment there are two reasons why it wasn't appropriate here one is that the court didn't even consider the prior art in the context of which these two the design patent and the the accused rogers product actually looked far more similar to each other than they do to either of the points of reference that existed in the prior art so you have a circular ring you have a dependent ring shaped references the cake up which we cited in our brief and the raymond reference which roger cited and if you look at page fifty seven of our blue brief you see the three way line up that we argue the district court should have conducted that didn't and that is on the left you see the two prior art references you've got kicked up which is an enclosed plastic container that's what people saw in the general public prior to this invention prior to the rogers cartridge and then you also see the raymond reference which roger  exposed filter which was new in the art at the time that i have here and i have some sympathy for your procedural process arguments i guess it's more process jurisprudential arguments but i guess my concern is don't we end up in the same place if it goes back i mean even if you say you have to look at it in light of the prior art even if you say that you have to look at it as a whole art there are enough differences that you could still that the trial court just could still say that no conclude otherwise no i don't think so your honor for a couple of reasons first of all that the the trial court excluded two categories of information it excluded the its focus primarily just on the shape of the filter and that in that sense it's very similar to this kid's actually very similar to the revision military case where the court remanded and require the district court to look at the shapes in the context of the prior art even though there were some differences because the court hadn't focused on the overall look in the ference and secondly there's the fact that the district court excluded based on its finding a factual finding which it should not have made that the paper chase of the of the of the filter was functional that was a separate error which independently requires remand what happened there is actually kind of striking because the district court resolved that factual issue is on really an insufficient record what happened is that rogers did you argue this that the  what our website page was inadmissible we didn't have the opportunity because that was waived by rogers that was rogers argued without any evidence in their opening brief for summary judgment that the paper tape was functional strike that came in reply right that's right we responded with extensive evidence including the the testimony of an mit professor an expert a world renowned expert on mechanical engineering alexander slocum who testified in great detail that this was an ornamental feature and he actually identified reasons including the fact that there are alternative shapes such as a flat bottomed filter and he was absolutely right because as it turns out in the end it's in the record the shape of the cartridge that keurig uses today is predominantly a flap on filter so that works just as well and in fact better but right or wrong it was a fact issue ever so relied on on on a document that was introduced by rogers only on a reply brief and what is that document it was this movie to document that they downloaded from a website of a competing coffee company malita they attached it to an attorney declaration and filed it there was no expert testimony there was no testimony of any kind about it jerry could not procedurally have the opportunity to even rev is he world renowned an expert in judging the experience of coffee friends of no but his testimony it was we actually did have a different expert your honor mr cressy who did testify about the apparent wexford about the versus st john whether patented design is functional or ornamental it's a question of fact dr slocum wasn't testifying about the appearance of mr cressy did that dr slocum was testifying that there are viable alternative designs that don't involve a paper chase and in fact as we see from the records he's right because the shape that you're uses today is not tapering well even you say that the district court judge actually took away from the comparison analysis when in fact on page seventeen of its decision you did the side by side comparison and look at the different filters first of all the judge took away consideration of the circular ring and the dependent ring shape well let's just let's put that aside let's say we disagree with you on that ok i'm not talking about the filters you're saying that the district court improperly found some aspect of your filter to be functional and then elected not to give any weight to that and yet analysis of infringement you should then i saw him go through a fairly thorough analysis actually comparing the shape and appearance of your filter compared to the jews products filter and so it's not clear to me to what extent if any that his finding of functionality with respect to some concept behind your filter actually influenced his analysis at all well because he says that he had stretched it out the tapered shape of the filter we can't know that for sure in addition because he focused on the filter he failed to do with this court required in the egyptian goddess and revision military process which was to focus on the overall appearance and the third error was that he sailed to do it in the context of the prior context of what an ordinary a observer would understand in light of the prior art and in cases where they are not similar at all when they're there should be distinct and in those instances you don't need to consider prior art i thought that opinion was pretty clear on whether design patents been in for and the ordinary observer test and it held that the ordinary observer is one who is presumed to be familiar with the prior art so the starting point even if you go into that extreme situation where they're so different that you can just decide without a point by point comparison you still are doing it from the perspective of an ordinary observer a familiar with the prior art and the reason is that that gives you the frame of reference when egyptian goddess departed from the point of novelty test what it it it did in  to compensate for that the fact that the point of novelty test was no longer going to be an element was that it said look you have to look at it from the perspective of what the consumer would have seen in the prior art at the time the consumer would have only had the cake up and the raman reference neither of which look remotely like the keurig cartridge or the design or the the start of the cure patents or the the the accused rogers cartridge so the exception that your honor is referring to which is referenced in the gyptian goddess is one that comes up only in a situation where you have such an extreme difference between the two products that they couldn't possibly be confused and with respect i would suggest we don't have anything like that case here the two products ok so if we were to agree with the district court below that we do have that case here that we have that right oh no your honor because even though the district court did two things that it should not have done and we don't know how it would come out one is to not consider the prior art at all so again even in that resolve the question without directly addressing that's correct your honor and furthermore the district court also made the error of considering the the the tapered shape this being functional relying again on this inadmissible here same a legal document which we had no opportunity and which in any event most creates a dispute of fact so and then finally the district court erred in exactly the way that this court reversed in the revision military case which is to not consider the prior art it all and to look only at the only it would be considered to be the most prominent feature which is said with the filter but again if you look at the overall appearance of these two products it's not the filter by itself that stands out it's the fact that you never had an exposed filter th pendant skirt shaped the ring hanging from a circular live there were not any and it was there anything in the prior art where where they actually used a filter bag as opposed to s hard sided cup no the closest thing they have to that is raman reference which looks nothing like either of these two products it's a flat hard shaped thing it has a slight curvature to it but it's not even remotely light and that's when the three way comparison which this court set up an egyptian goddess really is critical here and the court did state that it looked at the you know it said it you know it had considered you know the parents overall and on the whole but in revision military this court said it's not enough for the district court to say that where there the district court had stated the correct overall design standard but then had focus just on features that stand out as dissimilar this court reversed that is error this case is really virtually on all fours with revision military in that sense and should be remanded for a determination by a fast finder both of the facts question of design patent infringement and of the further related fact question as to whether any of the features are functional and all of that in light of the legally required perspective of an ordinary observer who has to be familiar with  would be a rule thirty six candidate based on the decision the court issued but even if you disagree with some of the court's analysis for example on the functionality of this tapering issue and the related leda factor it doesn't make any difference to the ultimate conclusion in this case because even if you factor the prior art into looking at these plainly dissimilar designs you would draw the same conclusion and if anything that prior art in disregarding the tapering considering it's functional rather than or i'm certain mental rather than functional it doesn't change the fact that these two things look quite different i think you're probably have to focus more on it doesn't matter because if it's a trial practice one on one just let me point out that so what is it that that the court found to be functional the the only characteristic that it found to be functional was the steeper and characteristic so what is tapering tapering simply means that something reduces insides all right but tapering if you are an ordinary observer who is looking at two products that have all sorts of different visual characteristics the i mean tapering in and of itself often does not and he based it solely on the fact that malita filters are paper your honor but he said both of them are taped both of them are tapered that's that's the point that they've made of it that that arses tapered as well because even the and well let's assume he can make that functional binding that's right at the matter of fact or a summary judgment aren't then where the products are still plainly dissimilar because even if you assume that tapering is is an ornamental characteristic the fact is that the nature of this tapering is dramatically different and you have to look at the overall product which takes you back to all the other differences which are evident it starts with the the skirt of the this three part analysis that your friend on the other side is proposing is one that is consistent with egyptian goddess and certainly can consistent with provision military so the question is on your back to your second prong you're saying it wouldn't matter even if all the prior art with the veil i'm saying the two are still plainly dissimilar and it comes within the language of addiction goddess which starts out by telling us in some instances the claim designed in the accused design will be sufficiently distinct that it will be clear without more that the patentee has not met its burden of proving the two designs would appear substantially the same to the ordinary consumer as required b so you have to convince us that no reasonable juror could ever find in character favor with a proper adelphi because because because looking at them the judge can determine based upon their plain appearance that they are so dissimilar better jury could not draw that conclusion looking at the but why should we as a court of appeals make that determination if we think that the trial court erred in considering evidence erred in making certain fact findings and egg erred in this the way it's set up a legal framework shouldn't we send it back even if the if the trial court reaches the same conclusion because shouldn't we require them the trial judges to use the correct that there's plain dissimilarities and i think you shouldn't disturb that part which i think is a fair reading of the case for a couple of reasons the first is this is a case remember where there's really only one in arguably two pieces of prior art piece the not quite of novelty test didn't work very well when you had a lot of prior art as opposed to very little so i don't think you can say that the failure to take a look at that other prior art in this particular case is a problem nor should you have a rule remember this this this carve out this this is patent the similarity element of egyptian goddess is just based upon a failure of proof which is you come forward and you say here are two things and it's obvious to the judge that they're they're different now and then let's talk about the prior art let's assume the prior art should have been considered what this a prior art do if you just look at what it shows the prior art  something that that half hemispherical shape so in other words if you if you put the prior art into the equation i don't think you you come to any different conclusion in this case at all and again i do think the court applied the right standard but but i don't think it ultimately makes makes an outcome difference if you decide to make the mistake of and with respect to tapering scuse me again tapering is not a condition which has a dramatic overall impact on the look of this so if you take tapering and you characterize it as ornamental the fact of the matter is that the the filter on the on the the the rogers product is longer it's i'm sorry shorter it's wider it has a totally different shape and that those characteristics are obvious even though both of them both that is the that the patent the patent claim and also the design of the rogers product they both have a tapering characteristic so again if you think there was error with respect to tax factoring tapering out of the equation of the in elsa's it really is i think it's about the least important characteristic for purposes of making an overall assessment of how the product works so let me just take a look and see then if there are some i have addressed the point about what the relevant for it was your honour's question i there was a statement my friend made about the district court not taking into analysis the circular ring or the or the or the skirt i think in fact that the judge did address those subjects in his decision and he discarded the possibility that those things were functional and so they were they were factored into the the analysis that the court they did mention that they weren't functional but that he mentioned them in his overall assessment of the design yes i think he effectively did your honor i mean he keeps you working at knowledge heap knowledge to see the similarity i believe above the circular tops which would it which would which would put them on the light of that when he did his actual ordinary observer compare yes he bends zeroed in on what it was which he thought were the most important overall characteristics that one would take into account in assessing the case and there of course the filter is the largest and most of the truly apparent piece of this analysis that the thing that the ordinary observer would most most be drawn to i mean take for example the circular time the circular top doesn't mean you end up with a circular object so in other words ok so there's an element of circularity acknowledged but you know just as you look at this court has cases tell us obviously that you look at the overall appearance of the product but this court also has cases to tell us that you don't take one characteristic which is common and blow it out of proportion here the circular top i think falls into that category somewhere in and i think again if you want to take the prior art and you want to add that into the equation there's no fact question about what the prior art looks like most of the the the  prior pieces have a circular top so if you put that into the equation and those things go away entirely as being any kind of an element that has any relevance on my friends side of the case so so in other words and then  returning just briefly to them a legal matter i'm not going to make much of a point here but i just do want to point out you know this was this was a piece of evidence they there was an oral argument in this case on this issue where this subject was never mentioned they had an say the disclaim it's general relevance to the issue of prior but nevertheless they had ample opportunity to raise the subject if they if they wanted to to bring it up so i think at this point unless the court has questions for me i'd be prepared is actually strikingly different it doesn't have a dependent spirit at all it doesn't have the same sort of tapered filter bag with about a one to one ratio of height to it it looks really nothing like either the design patterns or the or the accused product to tell the district court the take up wasn't that important i don't recall saying that your honor i'm not sure what mr peterson is referring to there that it doesn't ring a bell the marks that you referred to on the scar those are marks of curvature those aren't special markings again and that now we're down into fact issues of course these should be result of fact finder but we disagree with that suggestion you know these products and that they also repeatedly refer to the to the their product as hemispherical and i just want to take a moment to challenge that it's actually not a hemisphere it actually has an circular holes versus holes that were more angular but the court said as a matter of law that's not sufficient to distinguish them that is at the very least a fact question in that case the court actually helped that they were confusing with similar again by looking at the overall appearance and on the functional issue i just mention that roger is actually admit it at page thirty five of its brief that the decision below was based that's their word based on the functionality ruling so if that ruling can stand which we argue that it can't as a matter of law then they would essentially acknowledge that it at least has to go back on a rematch with a lower court finally your honor i think really there's a risk here of letting the exception that's referred to in gyptian god as swallow the rule it should not be a matter where district courts are simply stepping into the shoes of jurors and deciding these questions there had never been in the prior art anything that looks even remotely like what you're expecting to hear rogers came out with something quite similar to that are there differences there are some but it's at the very least in the gray zone where it's a question of fact for the jury particularly considering that this court established on banks that the sole test is that of the ordinary observer who must be informed by knowledge of the prior art if there are no further questions then nothing f