soley related to the it didn't miss ability of two experts that the plaintiff had brought forth there was no discussion whatsoever in fact the word obviousness is not contained within plain of summ judgment motion with the sole exception of the inclusion of a cite on a tangential issue other than that the issue of obviousness is not contained what's whether the sole issue was the defendant said players seem to live the claim should be dismissed because your experts are not admissible of course as to this claim that begs the question whether or not expert testimony is even necessary as to this commonsense analysis in this case we understand that the sole difference between those products that penn dot was was using as we discovered during this case which encompassed every single claim if we take the k s r issues of whether it was obvious to try and be means obvious to try moving from a roller conveyor to any power convey care whether there was the results were expected or or unexpected and whether there was a reasonable expects practitioner of success i think it's very clear that to anyone much less someone skilled in the yard you would say that commonsense notion that's a little inconsistent it seems to me with the position you were making at the threshold i mean i don't see where there's a factual dispute here i mean that i mean even taking your argument it seems to me what you're pressing for is for summary judgment of invalidity based on the commonsense notion that there was nothing new in the invention and there were there's no factual dispute about what it was yourself or right certainly  if you know i guess step one would be we would like to have been able to submit every bit of evidence as to obviousness had that issue ever come up but to make absolutely had we moved for that we obvious why wasn't it done at least fifty years ago or twenty years ago i suspect that has more to do with when when sealant melters came into being as opposed to when can various came into being we're talking about a combination of over can bring or with the seal of milk a but and that goes back at least the eighty's doesn't it sort of certainly which is the one that's more than thirty years ago what why wasn't it done we certainly had power ten years for them to figure that but i think even ten years if it's so obvious why does it take somebody ten years to come up with i can't tell you that but i can tell you that in this case well don't you need to tell me that no i don't think so because in this case the person that us but when it when you throw common sense at me and then say it takes some thirty years to come up with the common sense there's a little bit of a disconnect there i think you need to give me some more well your honor i think that th is is maybe a perfect example of the discussion of the evidence of ordinariness that would have been nice to have been allowed to put forth and the underlying action that that issue may be the result of the fact that  there's been a change in the way the sealant product itself would be delivered maybe it's that you can recall that that the the conveyor uses or is based upon blocks o i wish you had an answer for me absolutely your honor and i think that that if we were to the underlying action you should of obviousness was was being set forth i think that that would all be part of affidavits that were set forth in the case because as you recall they asserted that they invented the product from whole cloth and it was only during discovery that we found out that no in fact the pend that's been a department of transportation was the one that invented the product in the first place have abandoned that which is why they abandoned their attempt to protect claim number one which is the independent claim here that comes back to judge our says question once you've got that and information in the record why don't you move for summary judgment and i think that was just simply a legal decision i'm not sure that that we are reasoning whether right or wrong bears any  to change the gravity feed to our invariable it certainly that it's not a big field your honor i mean we're talking about two or three companies in the whole the whole industry any real role in this matter i think what is significant in this is that the change from what is the significance of the change from wallers to power is that somehow in new invention is that it please the court the district court's judgment in this case should be affirmed and we discussed already just the obviousness portion and one of the stick with that a second q you just add a motor to a conveyor issue was raised when after discovery had got on for about a year in this case the only explanation that we could receive for why our claims were invalid and at that point you were asserting four five and twenty three don't think we had seen from the party here was an extra report from mr merton as it's in the appendix at two twenty two and it's just a rambling statement about how everything in this pattern is old and just the conclusion that therefore the claims are obvious it doesn't discuss the asserted claims doesn't it attempt to tighten these things together i believe that opinion itself would not be admissible under the standards that have been set forth for expert opinion in obvious are motions that we believe we don't know we believe that your only evidence of obviousness seems to be this report which is nothing but conclusions we've never heard when we so we follow our motion  response as the district court pointed out there was just i believe two sentences in the opposition this is on page twenty one of the appendix all they said was the inventor david barnes identified a number of it's a prior art which incorporated the limitations of the three seventy five pat just the entire patent no attempt to discuss the claims issue and then they say these prior sales and uses invalid under the doctrine of obviousness that's the only response we've got to explain what their case was so for that reason the issue of whether the limitations of the particular claim and i'm happy if you look at claim twenty three of the patent asserted claim and includes more than just putting a powered belt on to a military in fact in that claim it gets into the details of the of the splash boxes configured for example that claim includes limitations from claim twenty one which talks about the size of the side walls of the splash box which must be proportional to the seal and locks it also says that the block completely enters the splash box before any part of the block exits the splash box there is nothing in anything we have ever seen from the appellant that addresses that limitation whether whether twice argument by pri five is a good example because in private adds a conveyor control assembly mounted on the inlet and now the pressure in the prior art what people were doing is they were loading the blocks into the melter from the back of a truck because the blocks have to be carried to the work site somehow there carried on pallets in the back of a truck and what pen that was doing was they had one worker in the truck throwing the blocks down the conveyor into the the good on the conveyor let's use the claimed independent claim one of the three seventy five path what in that is new non obvious and a to as you load from the back of the truck instead of having one person go up to the truck always and roll up the block down but it allows you to do is stop but actually yes i know it in a in a figure work site and then if you need the blocks you can drop them in with the control which is mentioned in claim five which is down by the inlet it doesn't need to be up by the truck this allows the workers to park an entire day's worth of blocks or at least a good number of them and then drop them in one by one that was something that there's first of all there's nothing in the record about the state of the prior art but this is in the patent in column nine discusses an advantage that this powered system gives it's not just a matter of we want to get the blocks in the truck so the melzer at a powered way is another way of doing it it's well put only the well the difference between the particular claim notion of using the power conveyor to perform this kind of taxes task this is not not listen well when you know i agree but when you see this kind of task that there's a danger involved for the workers because the the inside these melters is so hot that if it touched your skin you'd be seriously burned instantly so there is a safety aspect it's not just like moving rubble or gravel it's what i'm saying is like moving snow the system has to be designed so that from the time the block leaves the truck is loaded on to the the conveyor and that goes into the inside the belt or there's no chance of any splashing on the people who have to work with the xbox but was no that's  nice explanation all we've got is just looking at your four and five it's the claim one i just recently we were talking about wherein you have a powered conveyor that you're correct about claim five goes on to add that i manually on button but it's located down by the inlet which is the embodiment discussed and column nine of the patent which went south you can drop them in from down off the truck because you're able to park the blocks along the conveyor at the beginning of the day and what i am struggling along with my colleagues to understand why that wouldn't be obvious to one of skill in the art they certainly want to stay away from that hot liquid you're talking about so they're going to load them a long ways away and they're going to use their on and off switch on the conveyor while i'm trying to figure out what you've added to the arc here th incredibly clear to one of skill in the art well your first i'd like to say that the record as to what would be clear of one feel the art was the burden of the party of serving inability to show and there is no such record so so i yes other than this the patent office gave you a pat why did you get a patent for this your honor lining is hard to understand and you've got to give us a good answer your honor i believe that the reasons that we got the patent were because we were the first to add the power conveyor which had advantages that were not appreciated by the industry and having the op having an switch down by the inlet facilitates this preloading which was which was disclosed in the patent column nine and he claimed twenty three  the inventor spent a lot of time developing a splash box whereby when the lock comes in the door it's completely closed before the block enters the tank and that's in claim twenty three there is no evidence that anyone had ever tried to do that before there is no art that suggests that it was in the prior art but the door closed for the block of the splash they learned that people were attaching manual conveyors to our melters and flooding the blocks down the conveyor which was causing splashing out of some kind of primitive opening with a door of some kind our company jacked into that as a violation of the warranty and undertook to do so in a safer system and the result of that was a system where the splash box is safer because the door closes before the block leaves so there is no chance of splashing out and the conveyor also avoids this unsafe condition of having people up in the truck rolling things down into the bottom where someone else may or may not be waiting the invention allows one person to load in the morning your honor i believe that they did attempted to design something like that but it's not what's claimed in for example claim twenty three there's no evidence of that they had such a slash boxes and claim going free because there's nothing that one that the side walls of the slabs facts have to be proportional to the blocks and it's set up so that when a block enters the door the outer door is closed before it leaves the splash box the big concern that our company had and we saw these things in the field was there was melt there was sealant all over the outside so the ceiling was obviously getting out what's claimed here and claim twenty three is the most explicit of the asserted claims would prevent that all this to the district judge in a timely manner we get well district judges don't just make commonsensical mistakes why did they rule against you i frankly was flabbergasted y wonderful district judges i have a feeling that they wouldn't make a mistake unless the council didn't present the case to him and i in a way that would make it easy for them to reach the right decision well i agree i think it was unfortunate that the district judge didn't allow for oral argument that would have been i think very helpful i think there's a certainly a purpose for that i will say that your honor in response to a couple things that mr connives or said one  reason they got this patent is because every item which was in claim number one which was also contained within penn dots units which were in commercial use and which mr barnes at page four hundred of the appendix said was identical as far as the splash box is concerned all of those claims were not disclosed as prior art so what we have limited what we have been limited here to is the power conveyor so the question is would they have gotten this patent had they disclosed it the only difference between what panned out is using and what is being used today is the addition of a power  not now but they also said they spent a lot of time on this remember that the idea on especially related to this power actuator that we're talking about that so important the melter rendered the conveyor mr barnes went to work approximately fifteen days before this and said he didn't even work on this project until february of the following year so what we've guys we've got the unification of this all important actually later having occurred months before the inventor even goes to work on the project in the first discussion of the parking there that this invention the importance of this invention by mr barnes occurs wish smith next case is citi group versus capital city