the district court wrongly found that the plaintiff's expert mr corkran conceded that all elements of claims one and twelve were found in the prior art devices to the contrary in this in the section of the testimony cited by the court as an exchange between mr corkran and opposing counsel in which the differences between the claims and the prior art devices were listed  i have no explanation for the court's finding in this regard it's noteworthy that in defendant's reply brief it made no they did not contest our assertion in this regard there was more than in the way they operate the clean invention is a device a cooling device that they cool the drive a region of the drive in that area while the fidgets to and then over device or self contained units with their own dedicated cooling system in the front and they exhaust the air out of the back of the rack the drive bay for those devices is inside the case and there we have a very interesting issue where it's not consistent with the mark in order the the so the situation is the case goes into the slot which leads to the drive bay but in this situation with the with the jitsu and the know the devices the drive safe in the case it's inside out it's not consistent with the with the mark in order in connection with the other two devices the the the p c c two thousand which is just an extractor fan it's again it does not have a case back in fact this fan came from and it wasn't didn't come up a computer system it came off of a rack drive system and it was attached to the back just go it's a plate that extracts hot air from the back it doesn't it doesn't fit into a drive base slot and i think it's interesting again it goes through a a system of conduit there is no there's no way that you can take the edge for hundred module and inserted into the drive a slot because there is no opening in there and it in fact  there's a there's a cage for it we believe it's for r f production that prevents us from happening as well so you can even modify this thing to have the drive a slot so if you're successful in convincing us that each of these pieces of prior art lack at least one if not two or more of the clean elements what do we do with obvious we obvious missed the district court didn't pull an obvious case over with and we believe there is no compelling case for obviousness your honor that fundamental to the obvious case was showing that there's a reason to modify these devices for stone there's no what your main argument is motivation that's correct your honor and i'd like to point out as a procedural matter to they never they never gave a reason for that on the other hand our expert gave reasons why somebody would not be  why they wouldn't want to do it why it would be a mistake to do that and those reasons were if you just mentioned there that it would be it would be that it has its own self contained unit you're essentially taking something that has its own air conditioning unit and and eliminating that interesting this this community air conditioning system which it is is press a less expensive alternative in some respects but certainly a step down from of those models are wondering what one thing that i have a will trouble with is obvious this is a question of law and so for us to look at for the first time on appeal not the end of the world but given that you hinge your non obvious arguments on the donations combine and motivation it combines a question of fact with the district court has not yet ruled on i get a little nervous on appeal about the idea that i'm going to decide that question affecting appellate attorney is not something i would want to do so tell me how i can overcome this possible that that that i have i can i can allay your concerns by saying that the jury has already considered this issue the jury has decided this fact and it is that the ultimate decision of i was only through i'm only reviewing whether i jamiel should have been granted which is a purely legal issue that's correct your honor you're looking at whether or not there was substantial evidence on the record to find that that you could reach that legal conclusion and i submit your honor that the of the record is absent of any argument on defen three what would happen if we said let's assume we reverse th that the you notice of appeal put certainly put the defendant on notice on that we were looking to reinstate the jury verdict the jury verdict had both an anticipation aspect to it and an obviousness aspect to it and the brief that we wrote in our blueprint clearly covers both of those situations in depth i'm not sure if that answers your question i hope it does look like the answer is a nobody knows and then you filed a motion upset that correct and the district court didn't read assume that the issues in front of us are fully capable of reviewing the record that was before the jerk and sta how could we find that there's a relatively narrow drive based loss or that there's a computer or that there's a housing or that there's a drive bay at all there seem to be a wide variety and then of course there's the second opening issue where a well you know there's about four or maybe five things that seem to be missing your honor at the first mark when hearing at the first or at the mark when hearing at the first trial on the first appeal i was here arguing very vehemently that the n tech device the faceplate that looks like just a miniature eyes version of the p c c two thousand that's where you argued very strenuously that that didn't have a case and they did have a but that infringes the patent because it has a case because it is in a drive baseline and the only difference between that device and the p c c two thousand is that the p c c two thousand fits in a rack mounted device and that the antec device fits in the standard p c drive slot there is no substantive difference between the two now if the court finds that under the definitions of the mark when ruling that  that there is no housing for example that this that the p c c slipped into then anyone going to this whole question of motivation of combiners there's no motivation to combine references in this case because you're not combining anything all you're doing shrinking the t c c two thousand to fit into the drive slot of the p c it as a as opposed to a rock device there's absolutely as far as i hear you to be conceding that there's no trial i don't agree with and that there's no frame and there's no housing what was going there's no second opening it was a semantic debate between the plaintiff's expert and counsel at the trial where plaintiff's expert was saying no this doesn't fit into a computer why isn't there computer well because you can put anything in that and it's it's not a dedicated spot well that's that's not really the point the point is whether it is capable of having a drive in that area and it clearly is if you look at the two sled prior art devices that we showed you could there were drives that were in them sometimes in dr who were just to another yes you know again i think when the district court was going through the claim construction of the court and everyone around was thinking p c s and didn't see this fine distinction or some of the semantic arguments that could be made and saying well now this isn't really a drive a slot because there isn't a drive in it yet well  that same argument could have been made with respect to be an take antec ph d cooler where you can put a drive in it or not to fix the problem is you're saying you're saying it is so  had to overcome a burden to show there was no substantial evidence for any reasonable jury to have come to this conclusion and the fact that you introduce contrary evidence may well mean that if i got to review the case in the well maybe i would as a fact finder go along with you but we have well there's a difference between evidence which is argument and evidence which is a real tangible thing and the device itself saying that the device doesn't fit into a drive bay slot doesn't necessarily mean that it doesn't fit into a drug baseline and in that of the century is what was going on at trial they were making these devices for some reason i tend to remember that maybe a trial there had been actually a lot of physical devices brought in and shown to the jury and to couldn't they look at them and decide whether they sought it met the limitation of for example having a second opening like most anything this kind the jury could look at that p c see two thousand and six and say no we don't think it has a second opening what has to have a second opening it's the exact same thing then a smaller version was that was found to have the fact of the through the device and that's the same thing that's the nova and b a s four hundred and the p c two thousand i think comparing the p c two thousand and the h d cooler that was found to infringe there's no dispute that they're just simply miniature versions of one another and anyone looking at a fan at a p c back when this invention was confab that looked at that and said we've got some heat build up in here i want to figure out a way to cool the saw that doesn't seem to be any better way to cool it off than just taking a miniaturized version of the p c two thousand and just playing it right in which to exactly what the  what the anti device that was found to infringe did so with that i think i have about four minutes left i'm going to reserve the most or something else