please the court and i guess it's good afternoon at this point on this appeal involves three summary judgment rowlings with respect to three kimberly clark at and now this case has been here before but these patents have not the summ judgment rulings were a summary judgment of non infringement with respect to the two to one patents and summary judgment of invalidity with respect to the ocean seven patent based on obviousness and the one nine patent based on information i'd like to begin with  infringement ruling on the two to one patent and i'd like to begin with the claim fifteen of that path and one of the two independent method claims that issue claim fifteen claims a method for making a pancake provides for a number of steps including folding a pan chassis transporting up the folded pan chassis in a machine direction and moving first side panels in a z direction which is the direction perpendicular to the machine direction now the district court held that the claim step requiring the direction movement must be performed after the pan chassis is folded and the court also held it is folding step required complete folding on that is when the claim says folded pan chassis it actually should be read to say completely folded pan chassis or pan chassis that has been folded in half and of these claim construction rulings we submit were incorrect the plain language does not require either the folding come first or that any such holding result in a camp that is pan chassis that has been completely folded now it's for the order of the steps as the court knows the general rule is that unless a claim expressly requires a specific order or does so by necessary implication of the claims are read to require an order the claim fifteen does not express we require that the side panels be moved in the sea direction only after the panthers folded and it certainly does not unequivocally preclude the reverse  order which is this court is held involving graphic and other cases is what you have to have before you impose a particular order now the claim requires that chance to be folded and that the whole the chassis be transport it also requires that the side panels be moved in direction while being transported on side panel transfer devices nothing in the claim ties those two steps together or requires that one take place before the other now the claim does require that site panels be moved on the transfer devices is being transported but it doesn't say that they can be moved on the side panel transfer devices only while the full the chassis is being transported nothing in the claim says that the side panel movement can't be independent of the movement of the chassis  in fact those quality units bruce and page forty six says the vertical movement of the back side panels is independent of the movement of the rest of the training and that's correct now the specification doesn't require the particular order either of the specification in fact a column three expressly provides that the side panels can be engaged simultaneously with folding the pants not for the side panels to be engaged that means that the z direction movement has already occurred since that's what brings the fancy components together if the side panel engagement can occur simultaneously with folding the pants that means the z direction movement necessarily occurred either before folding or while the panties being folded and that actually is the way first quality does it in its process and this underscores the fact that there is no technical or logical reason why the side annals must be moved only after the the panthers fold and the process will work it will produce a prefab and refasten will training pant either way now this is in contrast to some of the other steps which do have to be performed in a particular order for example the last step of claim fifteen expressly says that the second side panels should be folded prior to engaging the first and second panels a clear requirement of a particular order also you can't move the side panels together after you've engaged them they're already together so doesn't make any sense to talk about moving them together after engagement but that's not true of the folding  and moving in the z direction steps now the court not only held its holding must occur first but it also held that the holding must be complete that is if the pant must be folded completely enhance the court found on infringement because zeke direction movement in first qualities process as i noted occurs after it's folding starts but before the full the pan chassis is completely folded no expert testimony established that one of ordinary skill in the art would not interpret chaffee to require a completely folded pan chassis and then alone should have precluded summary judgment here but instead the court held that that the claim required complete folding because it talks about being folded so that the opposing sides of the side panels are in a facing relation but that really begs the question because two things can be in a facing relation without necessarily being exactly parallel to walk one another or directly opposite one another on that the normal meaning of facing is position with the front facing towards a certain direction and nothing about the term facing relation dictate that a pantless fold it only for one side is absolutely parallel to or opposite the other one  here well i think frankly i think it's a it's a matter of degree and i think that that's a question for the jury i think and if you look at page thirteen of our reply brief i think it actually is a good example you have two pictures a first qualities process literally milliseconds apart one is a reproduction of a picture that was in their briefs and it shows the side panels you know basically very far not oriented toward each other but it's not even a split second less a split second later they are angle party job and we would submit that that is at least sufficient to present a jury question as to whether the two things are in a facing relation pants they the patent claim does not say opposite it's not they hold it in half and hold it  should have been done if that was the intention so we submit that next question again whether they are oriented toward each other enough to be in a facing relation is a jury question not a summary judgment question so i'm going to claim they completely fold if as a matter of claim construction if used if you believe that in a facing relation means completely folded in half directly opposite then there is not literal infringement that's correct and the way that but but subject to wh an abuse of discretion standard we concede that your honor now but here the specification talks about as i mentioned before engaging simultaneously with foley and so that supports the view that if it doesn't require that but folding be completed before the busy direction move it because you can't you can't engage simultaneously with folding unless you've already moved them together so that necessarily occurs either before folding or withholding  if i could turn if there are no further questions on that when i click turn briefly to the zero six seven patent now this is a pattern that the district court held invalid for obviousness and again on summary judgment it did so by resolving disputed issues of fact against kimberly clark and by falling into really the precise hindsight trap that this court has repeatedly warned about and it happened because of the way the court the district court dealt with objective in let me turn directly to that on i'd like to focus on the objective and do see that obviously been the focus of the the argument that there is undisputed to take one exam to start with commercial success undisputed that it generally clark find that these two pieces of prior art may be in fact made the combination obvious out and because it was because of that because i found that i guess i'm going to dismiss this evidence of commercial success well if you think about evidence of objective and issue it becomes self fulfilling and completely circular and the court did that on several occasions it did that with industry skepticism it's that industry skepticism seems more likely due to other factors including the the presumed obviousness if the court had already found it just turns the analysis on its hat and beyond that they're also just thinking about this in terms of summary judgment you know the court did things like and said that the commercial the consideration of the objective initial i wouldn't put it quite that way but on several in several places he said i concluded that the claims are obvious now let me turn to be objective indicia indicating that the framework for analyzing obviousness just as a matter of summary judgment he clearly drew inferences against kimberly clark and we were the non movement he said things like you know it equally may be true that tyco abandoned its effort to develop this kind of pants on for reasons other than technical difficulties well the two things equally may be true on summary judgment the nonmoving is supposed to get the benefit of that doubt you don't resolve equally may be true type words it seems more likely this than that type accord and i'd like to start with claim fifteen as well i'd like to start with this issue completely folded in facing relation and there's a part of the the claim flat i mean a plane which was not in dispute below it's basically you know you pay for here as flat as you can get it exactly right your honor yes so so based on the plain language there's really no issue that free over and over again the pattern has one sentence in the beginning that says that you can fold and simultaneously engage and that's all you're going to find in that on that subject there's absolutely no teaching of how you're going to accomplish that and the teaching what conflicts are points to frankly is is first sense that frankly you read it if you don't sure exactly what it means and then we read later in the specification the only point where it talks about it some more it's of says sometimes you could secure both of these side panels at the same time and sometimes you could do them sequentially and i think that's really what it was referring to but it doesn't really matter there's no teaching and not only that the plane always talks about your folding it you're position that i said there's nothing in the plane that says it has to be completely fault he took that position and then he didn't or for any deal we argument after that so this is one thing that clearly was an issue they clearly had notice of it they clearly knew our position and and they could've done something and they did it and under the case law that that there's no abuse of discretion here turning to  what was take get rid of those permanent seams and put in hook and move velcro and that's where you can take the product offering you've solved the problem so here we have a situation where the exact same problem was addressed by the prior art you gave the exact same solution as the other six seven that typically your case if you get i mean under analysis will you first decide whether there's a problem facia case you found it with the motivation to combine  illustrated by the leo harmon case the complete clark cites you don't always have a situation where the exact same problem was recognized and the exact same solution was proffered i guess i guess what you're saying is if the if a patent is on the combination of a a  existed in the in the prior r and b exists in the prior of the combination didn't exist in the prior art in order to show commercial success you have to show that the commercial success was due to the combination rather than either one of the two things that existed in the prior or exactly that's another way and that's actually germane to one of the issues on this appeal down below all the evidence that was put forward was that the commercial the nex the first to commercialize a successful but you don't get a patent for being the first to commercialize it successfully the technical idea of taking a training pantless you don't find seems and substituting a commercial success to have an excess has to before the teaching is still there if you hand ability in the supreme court said this can't be based on that they were the first to successfully commercialize it especially not in a situation here where the exact problem all the compounds were out there but no one really recognize the problem of how to put it put the compounds together and no one recognize that when you would you would do that you would solve this  when situation with the problem wasn't recognized and the solution wasn't recognized of course all the compounds were there and there was general teachings that they could be of some value but at the end of the day that that there was no t was no appreciation of either the promise of solution there do was tremendous commercial success and on appeal this court said wait a minute this is a classic case of you have secondary considerations to address an issue of we we don't want to hindsight we don't want to look through listening through the hindsight when this is a class legal farm is a classic example of that in hindsight yes of course let's combine these drugs and everything else let's do it but the fact that the the clark may have been the first to commercialise that successfully and yes the court found that that doesn't change what the floor taught it doesn't change what little into it just doesn't  difference their own expert testified that the outward facing hooks the claim for requires on a pant first falling that wraps they don't have it on a fold the pants and they don't have it on  is whether a visual segmentation element is printed matter i think it's clear that it is printed on the diaper and then the test is ok does this visual segmentation element somehow contribute  and here that we're confusing the test the test is and it's from the gulag case whether there exists any new in him and an obvious functional relationship between the printed matter and the substrate and visual segmentation element is nothing more than a permanent graphics permanent graphics or in the prior art active graphics were in the prior art what you can look like is really trying to do was is dissect the picture and try and get p protection for how the elements of the picture line up maybe that's good to get copyright protection for but it does not pass the print matic test and then your questions you around i'm trying to be brief recognizing the time i'm calling fifteen b the argument that you need to have a completely folded hands in order to define the transport plane that doesn't make any sense to transport plane by the terms of the claim is defined as the machine direction the machine direction is the direction in which these things are going they're going in that direction whether it's partially folded or completely folded so the fact that it refers to machine transport plane doesn't make any difference the machine drawings that's a particular embodiment and there's nothing in the claim language that requires the particular order of steps that the district court imposed now as far as allowing us to raise the equivalence claim it may be true that we knew first qualities position but the district court had said fold it will be given it plain and ordinary meaning and and as mr george pointed out we had expert testimony the plain ordinary meaning did not require complete folding which should have been allowed to pursue that you quote once claim on the zero six seven patent mr george said you don't get a patent for being the first to market and that's certainly true but the fact that you were first to market the fact that you was sixteen years elapsed between the supposed prior art solution to this problem and the invention this court has said in multiple cases is that lapse of time is an objective indicator of not obviousness so we're not saying we get a patent just because we were the first to have a commercial success but a commercially successful product but it is an objective indicator of non obviousness and it should not have been resolved on summary judgment it is also true as mr george said that the fact that we have commercial success the fact that there was industry skepticism and copying and the other objective in dish it doesn't change the teaching of the prior art but it does ship light on the motivation to combine these different pieces of prior art because it causes this it should cause the fact finder to say objective industry to be able to put yourself back at the time of the invention not engage in hindsight by using the patent and then going to find the various components that didn't happen here and it should have just very briefly a claim again if you look at the claim language there is no requirement that inversion only come after folding the plane does not specify an order the process will work equally well either way and finally on the one one nine patent now this visual separation element there's visual segmentation element there's no dispute that the prior art teachings did not include that element it's defined by agreement of the parties as a visually distinguishable feature that separates the exterior of the absorbent article into two or more zones and in particular into at least one training zone including the active object graphics and at least one characters on getting the permanent graphics there is nothing about that construction on its face that indicates that the printed matter dr has any relevance here at all this is a physical separation of a physical structure the outside surface of the pants and in fact if you look at the bolstered by the claims that are at issue because they specify precise dimensions for this area it's got to be twenty millimeters from here and when i ask you that i