the court erred and for a number of reasons of factual disputes and misreading of the patent application the patent application disclosed the best mode to be a water based acrylic coloran international motors in happiness with a quality product that caused them to go to poly want another supplier and if you look at the record from three zero three to three zero five it makes it pretty clear that from the time that the international  comfortable with the idea of having the district court consider anticipation of obviousness but is not something we can decide because there are really no genuine issues method which is highly inefficient an economical which would not yield a product that one could sell competitively with natural mulch because of the vast quantities of spray required to coat it was very efficient water based acrylic dollars and earn pretty much to those of the same thing where on a burn is a product that isn't like a mat if the similarity between a burn product and the greenish product similarity between astroturf and a blade of grass you you know run on both of them but they are very very different products and one does not anticipate the other in a sense the firm product required the glue particles be glued together  compressed format forty percent of the weight is binder and the coating to hold it all together there's no need for to look like anything like natural mulch that's laying out there loose it's not a real being used that way mr press came down and took the deposition of my client dale hawker can florida and after the deposition they had made arrangements to go inspect my client's facility my client without the help of an attorney the only thing they ever used with regard to best mode was the future of coding mr greenberg specifically stated the only color that he knew that would would successfully work suppose they took two years to develop this coding the only one that would work was the future of coding and the only thing that the parties knew it when they ordered that was the designation two four zero zero nine future is coding number it's true that that knew the proper designation of the of the future coding but meanwhile in other words to disclose this they had to get two boars zero zero nine into the record somehow they need not only needed to do that at the very least but why would they need to do that they identified the pass mode that they knew of the by name by corporation by place where you could because best mode there's no requirement of of contrary to mr jacobson's argument for there to be a inattention to see enter there is it the only question is whether at the time of the patent application there was a the best mode that the inventors had determined that there was a best model that's undisputed it was the future of coding and they disclose no they didn't your honor they didn't do to but what they disclose they did a v corporation and the name that they knew the name that they were given no the name that they knew consistently every time that they had ordered the material it was two four zero zero nine they had never used the the word visit chrome and and purchasing it they received a letter they thought they were the real inventors the reality is that the future people designed the formulated the coding it was proprietary and they have to get ape proper name they don't want to skill in the art wouldn't be able to locate this with the with the designated location yet the the no more sparkle to be had anywhere and i haven't suddenly got a patent this become invalid you know the day that the sparkle company goes out of business doing this case this court has held that best mode even if it's a trade secret has to be disclosed if you know if i disclose sparkle and sparkle is can be obtained at every hardware store and i give you the address of a hardware store we could find it in my application and ten years later you can't find sparkle anywhere that doesn't invalidate the patent on the day that the last can of sparkle disappears from the last time or stood as it but that's not the case that's not the fact but let's let's establish whether that's true or not because i thought you were saying yes it go that path becomes invalid and that seems so i'd highly unlikely to me i believe there's a in the law typically we do not allow monopolies we allow a monopoly in patent law in return for teaching the public specific things about the practice and the use of the invention one of those requirements is best mode if the inventor has a best mode there's an obligation even if it if someone and there's no dispute that in this instance it was considered a trade secret there is an obligation in consideration for receiving the the monopoly of the patent that you disclose the trade secrets what the what that prevents is exactly what took place here that the inventors maintain were able to maintain what may have been a superman prove type of coding we'll never know because we've lost the formulation but if that coding was so much better that it  was actually novel that it didn't wasn't to supported by the prior art then there would have been a an improvement to what was in the public domain about the creation of rubber mulch that wasn't the case here it was overweighs proprietary they maintained it being proprietary the evidence is that only greenidge was going to be able to purchase it that that the agreement that they had with future was the only green that would  the declaratory judgment was dismissed there were underlying trademark claims by greenidge that were asserted against rubber  mulch the court dismissed several case several claims for basically considering that the parties had abandoned them green edge had claims for trademark infringement against green it against rubber mulch and i think a reasonable reading of the court's ruling on one of the judgments was that all the remaining claims had been dismissed there was never anything decided one way or the other  prosecuted that the trademark claims against rubber mulch and to be honest i had trouble with with that until i went back and looked at the judgment to to find that one didn't the court hold that there was a lack of standing to the court below and i've never had a situation where we had my my client had been sued we asserted a counterclaim for declaratory judgment and the court found that there was no case or controversy and that's exactly what the court did in fact find so and for that reason i believe that the court was in error with regard to the trademark by turning to the lanham act claim the court clearly was erroneous with regard to the conclusion of law the court found in its opinion that there was a requirement that the theory of damages be disclosed as well as the calculation of damages and that rule twenty six required that there is no such requirement in rule twenty six the judge picked that up from a ruling and in the case was twenty four seven and as with most of the cases that in fact with all of the cases there under rule twenty six in this case there was four motions to compel in all instances they were against the greenidge parties there was never a motion to compel against rubber mulch or rubber resources they were never in violation of resources have standing for declaratory judgment under the case law they're asked that there has to be a real controversy the evidence is that that the that rubber resources used the term rubber mulch in their advertising both green edge and international mulch contended no we're talking about declaratory judgment here though yes and there was no action taken against them by either green edge or international that's true so i'm trying to figure out this the i don't think there has to be all there has to be is concrete steps taken towards it and there must be an actual controversy robert robert green edge an international motoring both took the position that the term rubber mulch was confusingly summer to the rubber if it mark robert resources used the term rubber mulch in their advertising and for that reason alone since since there was a potential future describing the product in fact maybe if the name of the product i'm i'm not sure it may be beyond description well at the very least i contend that it's a descriptive mark which the court had trouble with understanding the difference between describing a product and a descriptive mark as being one on the on the scale between a very unique of and a descriptive not your position i take it on this is they send somebody else for the same thing and therefore the they presumably would be prepared to sue you that they clearly stated that that their position was that the use of the term rubber mulch constituted infringement of their market so your position and more broadly stated is that anytime somebody sues party a for a particular course of conduct that anybody else has engaged in that conduct could get a declaratory judgment judgment i don't know that the anywhere in the country would apply but to the extent that there was use of the mark in a particular i've used the term rubber mulch and california i can s our judgment depending on how you're using the mark yes your i believe we'll hear next from them is  as to the issue of the use of rubber mulch the term i think part of the dispute is that my client's concerns were the use of the term rubber mulch in a trademark sense not in a description of the product on the  packaging more importantly i think to the current appeal is that i don't believe there was any evidence on the record at the time or before this court as to what rubber use rubber resources use of the terms rubber mulch may have been on any products or advertising there is a declaration in the record from dale hawker who is the president of rubber resources that i believe states something to the effect of the rubber mulch appeared either on the packaging or the advertising but there's no for their evidence in the record of  use of the of the term rubber mulch and my client's mark just for the record is rubber ific so i think it's to rubber resources there is no there is no case or controversy there was no sufficient own the rubber ific mark anymore and was prepared to dismiss it its trademark claim that was a record with the court with respect to rubber mulch the the party i don't believe this court has jurisdiction because i think those claims were dismissed far before this case came up on appeal when the rubber mulch parties came to the court and said through council that they were no longer interested in pursuing any of their claims and all of their counsel withdrew and they were no longer a party claims dismissing the counter claims rubber multics cetera exited the case prior to the court ruling on the lanham act claims or with several months before we ever reach statements from all of the parties sort of asked his status because he was hearing that some of the parties had gone out of business grounds gave him another one of the parties in this lawsuit and he asked for a status update us to all the parties and a status update on behalf of rubber multics cetera was that they were no longer pursuing of discretion standard as to whether or not the rule thirty seven sanction of preventing the preventing robber resources from presenting any damages evidence at trial that's subject to the abuse of discretion and i believe that the record is clear that the rubber resources parties never fulfilled their burden of coming forth with their either theories or amounts of damages and even at the time of the hearing we're still confused as to whether they were seeking actual damages disgorgement they put a jury instruction  seeking good will for the first time and that had never been raised no witnesses have been identified best mode the facts indicate that the inventors best mode was this two for zero nine coding it conceal it i don't think that they i don't think the evidence shows that they intentionally concealed it i think that the evidence could be said failed to disclose it and i think that that is that that is the that is the inquiry here and i think as mr foster alluded to when you have a proprietary formula and you aren't able to disclose for contractual reasons or whatever th sometimes there's a day as americans are alive but the the the testimony there in the end they depositions of so on was that not that they thought that this one substance was the best mode but this is simply example i think we need to look at the word such as and realize that this is simply extending example a statement in argument that the only people who could ever purchase this from future awards being edge is also incorrect mr foster's client in fact purchased the color and from future uk with no information other than the information in the patent i mean they were his supplier as well and i think that's just all are being not is it correct to say that the color would be identified by two four  binder and a color has ignited by that's exactly correct it would all be mixed together in one barrel right but it would be the particular combination that would fit here to the rubber and the binder is mr again mr jarvis he'd say that the binder is  thought a quote was better they want to collect but simply say kritzinger crilly doesn't tell you that it bites right it simply tells you this is a class of substances some subset of which will bind is that correct that is correct but as he also question at least for a nobleman purposes would be how difficult is that process based on the fact that you have revealed anything about the particular nature of the acrylic that it points in the direction of binding both right that would be the question of that in the expert witness testimony of two of them so that there are unable that would not require an i me under experimentation and we have the actual fact that poly one did it for these reasons i'm over my time i would ask that reversed some back trial on the various well of the issues thank you thank you as of october one thousand nine hundred seven which is the date that that was applied for was busy was the physical product a feature of the only suitable color in your experience recalling shredded rubber to produce synthetic mulch answer from from mr i mean from my knowledge  that would be the case mr jacobson said your client obtained is that that's correct my dislikes sound like it was either concealed or in any way inaccessible time they were able to go they didn't discuss they didn't withhold it they didn't conceal it it was excessive bill to you and conceivably to anyone else who would have sought respectfully no your honor the only way they brought it was the record say respectfully point is that if you had read the you yourself got it how can you be complaining that you can't get it because the only way that that my client purchased it was from greenidge not not from future but from greenidge the license required went when rubber mulch was a licensee of greenidge to purge as you read that somehow into the best mode requirement of this corps that there's an a license exception to the concealment requirement there was not there was no disclosure to rubber mulch about the the formulation there was no all they knew was that when when they received an invoice that said two four playground covering to protect kids who fall off swings right it's characterized as a ground community when i take my kids to various playgrounds i think this little tiny looks like the size of  of eraser bits actually in the market the product is the same that sold as mulch with one distinction that there's no way they make sure there's no metal in the product that soul as a playground material  versus if there's any metal from the steel building from the tires being in the mulch now the record of course isn't developed so do we know they're there particle size limits built into the claimed invention is there anything in the well as mine addressed at the patent teaches a range of particles that fall within the range that are claimed by their face and there are about a three to ten percent weight of said rubber particles correlation with the acrylic color i'm not sure which are asking well i'm even in the claimed invention the amount of water based acrylic colorant is in a three to ten percent by way of said rip rubber particles relationship is that relationship in jacobus i believe so yes your honor because that the color is it you believe so yes yes your honor if you look  results are the same we propose that at the very least it's in combination with burn makes the five fourteen pattern obvious that doesn't burn as close to five percent coloring agent yes i think so that the rain the  compressed it into a a mat and has anybody that has a paint brush you don't clean the paint brush out the the paraguayan the record is there is there any evidence in the record of why one would combine with two groups through the need to be your of the the court into a final judgement with regard to the declaratory judgment there were other countered there were both claims and counterclaims remaining after that green edge had several claims against rubber mulch and rubber judgment action that judgment was entered with the remaining issues specifically the lanham act claim resources and the court in just a general order kind of think maybe trying to clean up the room if you're addressing the finality question i think i was really intending maybe maybe you are guessing my question but i but to be more specific about what i'm looking for is your opposing counsel said well a rubber resting in a rubber a thick rubber resources still has that clearly tory judgement but that's no good because there was no threat against no suit ever brought by anybody against rubber rather than watch has given up it's a bend in the feet with respect to this issue not what i want to do specifically to address is is that right or not no i don't believe so your honor because the judgement had already been entered with regard to the declar y judgment action and then the rubber mulch the council clearly myself withdrew from the case in the court dismissed without prejudice when you when you say you withdrew from the case just to make sure that i understand exactly where we are because we and we have to decide this question among others and the way you are opposing counsel left it is we would simply say well rather rather recesses and and so random waltzes out of the case but you're saying their amended complaint and rubber mulch had certain counter claims that were never decided by the court other then a kind of only us order that said all claims are now dismiss all right thank you