this is the spy action which started in two thousand and three and has been going on for about seven years we've had hundreds of papers back and forth and with all these documents over seven years as i recall the district court thought it was just the one where the only evidence supplied was from mr michigan and that that he thought the expert testimony was insufficient or an app for well just before this am i right about that goddess dependence it seems to me on the prior art yes so you have to look at the cues device and the patent and there are similarit in light of all the prior art and what struck me about this case is that some of the prior art is pretty close and that therefore perhaps in this context smaller differences between the cues device and the patented the cues device in the patented design might be more conspicuous but your run of the court did not say this prior art is so close to the patent that items that little little differences make a difference it didn't say that it didn't it didn't do they need to say that and this goes back to my earlier comment about it being a crowded art feel as the court need say these little differences make a difference isn't that understood when you're looking at designs in this context about the port did not indicate any prior art which this is the dom the prior art that is so close to the patents that these differences are going to make a difference than say that there is no prior art that the court cited that i felt was  very well hear from opposing counsel let's see i guess we're having two arguments from opposing counsel today is that correct with the court's permission your honor and then you are mr the overall appearance of the ninety's and i think that you know the court obviously did that the trouble in any or going on appeal dealing with the design pattern with that question is that of course the can't the court below can't articulate the overall difference without saying something that they're just different and as soon as a court goes oh what i see that's right your honor it as soon as you go to the next level of abstraction to explain why do you think there are different an overall level you raise the issue that can be ripe for appeal saying  you're looking in individual feature not the overall you have to write the opinion at that level and that's what the court the other issue that's generally raised is that the court didn't identified dominant prior art or familiar with the prior art there's nothing in there about subsets or closest anything of the sort it's all hypothetical ordinary observer not an actual live person where you present to the court what unlike person would or would not have been aware of not us also calls upon the defendant to be responsible for finding that prior art and bringing it before the court i mean that's what we did we certainly didn't thrust all of the prior are on the globe in front of the court we chose what we thought was in fact the product from that vantage point from the perspective of the person who's familiar with the prior art instead they simply articulated the proposition that the accused in the designs are similar but without that perspective you cannot begin to meet your burden  cannot demonstrate the existence of a genuine issue of fact let me just ask you a side question on that point i mean i know there are a lot of patents around here in a number of issues what took seventy years what is this and this case what ultimately went down on  somebody's judgment no jury trial why did it take so long what took so long i might have to defer that question partly to mr richardson who was in it longer i do know that there were some jurisdictional issues between filings in new york and in seattle it was a stay of the case during egyptian c got us waiting for that opinion that accounted for a chunk of it i think that's those two issues of the bulk of it to get down to the know it when i see it if you could look at pages fifty six and fifty seven of the patent is also lined up against the accused knife those look pretty similar to the untutored guy and the question is what point us if you would to prior art that when viewed in the context of the comparison between the accused device and the claims designs would emphasize or call out or you've broken into three groups into that the court is directing us to now is the group of two sets of claims to patents wherein their claim only is directed to handle right and put everything else in france right and that leaves very few details for there handle and one of them has the indentation at the back edge of the rear top of the handle and they both have a number of scouts either two or were four so the courts conclusion was that one of those was nearly identical to these two pat brief summary so you see we're going if you find the blade holding means and where the blade larkin's limitations claim twenty six to be subject to section one twelve six then you should find that the the court concluded and we think correctly that the experts did not apply the proper along and when you say experts let me make sure i had thought that mr miskin was the only expert whose report was in play here to justify a trial in this case he totally overlooked the possibility that there could have been little infringement and he jumped immediately over onto the issue of dark in the province which we believe is not applicable in this case and the judge concluded that his that his report as a whole simply not reliable when you say the doctrine of quid once isn't applicable in this case are you are you saying that what's at issue by virtue of the judge's claim construction of the means plus function claims what's at issue is whether there was identical or equivalent structure disclosed in the specification but not the more conventional  yeah and no no rephrase your question please let me let me well i'm trying to see if when you say equivalence were not at issue in this case whether your saying that the traditional doctor understanding is that the expert didn't recognise that the equivalence issue was a subset of means plus function but that dealt with it as if it was a straight infringement with as under the view that the two types of a quick glance are not equivalent no they're not they're not well they're not exactly the same they're different but you said earlier i think that odette x deals with the is not applicable if the accused product is preexisting tech i think that that ruling i could be i could be wrong because i didn't go back and reread x but i thought that that ruling was a ruling that pertained to the question of see under one twelve six not under the normal docket of cults but if you tell me that i'm wrong about that i will i will take your word for it for now and check i what i like you do you know you can you represent to me that you are confident that that is true and that you're not getting the two doctrines mixed up no i don't think so and you don't think you can represent to me or my womb or present to ok in fact if you go back to the pioneer well there's the whole wilson sporting goods line of cases which talks about whether the  word marks applied to the products were sufficient to distinguish them great neck applied the trademark sheffield to its mark and and stories you applied the more tightly to its knife and one of the arguments we put forward was that the use of the word marks should should reduce or eliminate likelihood of consumer confusion and that's what that's what  to go to a jury and put out and given the facts so that the jurors decide what the facts are that you very much honest thank you