all and as that's probably indicative of the failure of proof that arctic cat made a trial through its expert if you look in the blue brief and pages thirty five and thirty six and here i need to seven and eight now looking into plain language not talking about motivation to combine this is the kind of hindsight conclusory testimony this court has repeatedly said was insufficient as a matter of law in cases like in shit we are going to be considering substantial evidence that's the standard we should look at and we have to presume that the jury made fact findings in favor of finding these claims invalid right now so your argument really of errors in the district or its decision so long as there's if we find substantial evidence to support the jury's factual findings isn't that sufficient don't we review we review judgments not opinions when we're looking conclusory expert testimony that doesn't that doesn't address any of the case are factors including motivation that is the basis on which we think the evidence was insufficient and that's why the j model should have been granted an obviousness as to those elements those claims of the eight or seven patty i would like to turn in the interest of time to the six hundred and sixty nine patent where there are also errors that the district court committed with respect to indefinite in this and if there's time i will talk about anticipation as well ninety nine b and ten that was your proposed construction is that we did yes actually i should be by should be clear we propose that it be the the definition the specification of the standard writer and then the court said in fairness  court's guidance from the bios a case after every man from the supreme court and you look at the intrinsic record and you say was there enough guidance in the intrinsic record for someone of skill in the art to look at figure ninety and determine what are the relevant dimensions in order to instruction because when we considered it to be an issue of law and if there were underlying factual issues the court could make those factual findings there are your underlying factual issues here no because there are no areas that are relevant to the dimensions of finding the th percentile adult male that's what i find interesting about your argument is that you accept it because you advanced the notion that your claim construction for the city position limitation rest was the definition provided in the specification and it found reasonably i think the idea that it's whatever a standard rider would be and and then all the elements that are described as being the ruler for what a standard rider is and the written description including all the dimensions itemized figures nine and nine billion and ten your argument in your briefing in today seems to be well only some of those dimensions that are listed in figures ninety nine b and ten really matter and we should ignore the other dimensions that turn out to have lots of mathematical defects in them as not being relevant and i just don't understand how you can try to define your lexicography by only half a loaf i think you have to take the whole load and if it turns out your there is lots of mold in your loaf that's really the problem and the fact that you have to live with with the lexicographic definition provided in your written description tak  understand the claim scope with reasonable certainty so let me try to address that very point at trial my friends brought out a number of errors in the th percentile in the ten percentile now everyone agrees those can't be relevant because the only thing claimed as a th percentile they also tried to convince the jury that the standing height of an adult male was somehow relevant to determining the dimensions of the standard writer on a snowmobile it may be relevant for your as they pointed out how to your driver's license but it certainly isn't relevant in the context of this patent so let's talk about the intrinsic record when you look at figure seven of the patent you see a rider a one upright or single person on rim and that shows very common sense someone seated on a straddle see with their arms forward and their and their feet and each well but i think the best proof of what the intrinsic record shows are the relevant to mentions are clearly during prosecution what the relevant dimensions were they said contrasting their invention with with a prior art they said what don't look at that prior art here and through the relevant dimensions stand ambiguity where there is none i was on the cause point of the chord to those five or six dimensions that are the intrinsic record tells the person of ordinary skill and tells the court these are the relevant dimensions so our expert dr roush took those dimensions looking to figure seven of that writer and said that writer i'm going to use those dimensions i'm not going to use standing height or some outstretched arm and that's what she did and said that's what she proved infringement with that's what we proved infringement with before the jury invalidity everyone use the same method is there bander demi that's the th percentile in are american men there is i thought there was an difficulties of making a proper dummy in this case i think the questioning at that point your honor was whether it be dummy and she did and it's very close and that's how she determined the seat position and i'd also like to remember this is an issue of law for the court and indefiniteness i read i think that could be underlying issues of fact just like in claim construction we have been instructed that there could be underlying issues of fact similarly and indefiniteness there could be underlying issues the fact is you're trying to determine what the scope of a claim and it is and whether it's even could be determined standard position rigidly on the on the c position defined by the seat are relevant and i'll raise another issue claim eighty eight is different in kind from other some of the other claims that were in the case that are in the past in the six  c position disposed a certain distance from another component of the snowmobile the forward most drive track axle claim ninety seven is another claim of the patent not asserted here where the c position is disposed to some distance relative to something else for those kinds of claims i could understand if a party was going to try to make some definite a standard no argument but the c position defined by the seat in claim eighty eight dollars is just that it doesn't require some sort of further scrutiny that the construction that was given to the jury was for its aid to understand what it meant but the claimed eighty eight dollars calls out straddle type seat a standard component of the conventional snowmobile standard component of our claims no bills a standard component of the infringed infringing snowmobiles console you well into your robot on time i will give you two minutes for a bottle good for you sit down into your sleep position very much mr macleod morning new mccloud representing appellee our cat may please the court from from counsel's comments it sounds like they're slowly coming to realize that it is the claims as construed that matter for purposes of indefiniteness you don't construe claims and then push the construction aside and go back to analyzing the unconstrained claim it's the construction matters it's what the claims mean that  following dimensions in figures nine a and b there was nothing no proposal like that from b m p that only these dimensions matter but more to the point our expert warner did analyze those dimensions the point with that mr warner was making with respect to the overall height of the of the body building figures nine and ten and the overall arm dimension is that they don't add up the overall dimension does not match all the sub dimensions you don't know where the errors are don't you can't account for that discrepancy it makes it more than just an error it makes that we were and this is the claim mistake about that the only reason we're talking about figures is because that is the ruler that all measurements are made with you don't know what the dimensions of that ruler are because of the discrepancy between the overall dimension and all  got twenty three dollars for example inches or centimeters whatever dimensions and they say you know go measure something go measure the courts bench and report back with reasonable certainty as to what the what the high is you can't do it with that rule and that's the well i'm describing you can't do it you can flip a coin which is what i think their expert did and said well i'm going to choose ease dimensions and ignore the ope the fact that they're inconsistent with the overall height dimension but if you're being honest you have to report back i cannot do this measurement with a tool i've been given it's broken it doesn't work you can't do it you can't come to any reasonable ruler so that was the point of his testimony and he did address the relevant demand what they would be european calls the relevant dimensions in terms of the overall height and his testimony really shows that you can't do anything with this one because you have no idea where the discrepanc standard measurements of a north american male a th percentile right maybe there is a dummy that had those dimensions why is it that we shouldn't ignore the earth and the figures off you can't come to any conclusions and the a to b doesn't help you eighty bit that the dummy that was used council counsel brought up claim eighty within that limitation the point i'm trying to make is c position is in both of those claims it means the same thing in both of those claims it's a rare case where a claim term means something different one claim that it doesn't another claim eighty i think emphasizes or you get a greater sense or a quicker sense of just how indefinite these claims are because of some position defined by the c you can't take any measurements down to the five hundred and ninety millimeter dimension using this flawed ruler where you don't even know which dimensions to use evidence saying there's not enough substantial evidence and we're up here on appeal with the jury verdict that there was you have to view the facts in light most favorable the arctic at and they did find claims it almost like a magic awards requirement that experts have to go through and there isn't and the reason probably for that is it's clear that that would be a bit of rather onerous thing for experts to do is to memorize each claiming decided every time you want to the next claim i will point out that when art for carbon was testifying regarding these claims he was using as experts often do impact cases they claim chart up on the up on the screen where he was checking off each box for each claim as he went through it so the claimed term for a claim a and for claim seven and for claim six were all on the screen for the dispute is public they just say it wasn't public enough it was public it was written loaded by roger scum on a public highway in minnesota it's fully corroborated what w exhibit as much as you can with the document so that it can still be able to cross corroborates lifestyle i guess your public use argument makes me wonder if we start to adopt it we start going down a slippery slope we have witnessed a saying oh yeah i remember seeing this snow maybe a thirty five years ago i rode on it and you have witness be saying oh yeah i remember seeing that snowmobile twenty years ago twenty years ago somewhere in there it's not enough i would say that it is in this case obviously you have to win this is identifying the exact same slow people it's a distinctive snowmobile they're not saying you know i saw distinctive one that he wrote on if it's a matter of the credibility credibility of the witnesses i'm sure that is a story that's part of it probably a major part of it and you know that something for the jury to really examine for that whereas b or p k for any there's i think the court below on this on this issue spent or gave in and of warden an amount of weight to the fact that when you combine two references you often s combine two things but the key part of this though is that the r p c all expert witness when asked about these claims of making the claim ranges he was asked whether dollars to ninety dollars millimeter ranges and his answer was if that range complimented his or her design yes so if their own expert is saying it's these ranges are nothing but inside tricks well and seated in a natural operating position not standing not walking that's stretching its arms out seated in a natural operating position and we submit that that is that actual operating position shown in all the figures but most especially figure seven of the six counsel said something about that there has to be an exact point on that on the straddle type c again let's look at the claim construction a portion of the straddle type seat understanding that when someone sits down they're not going to contact the se only at one point the issue here about indefiniteness is reasonable certainty let me be brief and anticipation we don't agree that that was a public disclosure when mr eighteen took arctic cats vice president out for a ride we don't even think it was corroborated in fact if you were to if you were going to accept arctic cats evidence presented to the jury of this case as sufficient corroboration a single interested witness you would be undoing finnegan to start with you would also be doing a doing basically a century of corroboration requirements by the supreme court and this court because judge laurie to your point credibility is not the issue  it's we don't defer and say well one person's telling one story as long as they're credible will lead could get by that is not the corroboration requirement they have that it's that the duty by clear and convincing evidence to show that this had team was ever public out the jury didn't buy their story obviousness as to those claims ninety five dollars to three hundred and ninety five dollars so there was substantial evidence in the district court cited to it in its j m a well but the other point we would make is we believe that the anticipation  result that the court reached was wrong below her teen and fox track don't anticipate neither one anticipates and so without into supporting references they can never get to a business anyway because they are missing necessary elements of the