page eight of our reply brief there is a photograph of a mcdonald's happy meal box and that particular picture really kind of crystallizes the difference between  function of an item or a design in the everyday sense of the word and the functionality of a design in the is a term of art and trade dress infringement cases and so if you look at that picture of page eight you'll see that the happy mailbox has handles that look just like the iconic golden arches that is because of its trademark those handles serve a function they allow you to carry the happy meal box but they are not functional because any set of heat that they don't have to be gold and they don't have to be in the same curved arch as the mcdonald's arches they could be any shape it could be a square handle it could be a much more curved handle they don't have to look like the golden arches and that's why they're not functional it's not essential that they look like the golden arches in order for them to perform the function of carrying the happy meal box and so i bring that up because this little center scallop on our metal fastener here that's our happy meal box him it serves a function in this case it reduces the volume of plate material on this pasture and we don't have that well let me just say i understand what you're talking about you know we have the totem case as well as other cases but there's a great deal of evidence in this record that suggests that in the trademark sense of the term the shape of this scollop including if you will the smile work better to do it that way now for the mcdonald's box whether you have handles that or an arch that's a steep arch or a flat are or that had its rectangular it doesn't change at all your ability to carry the box but here there is lots of evidence that this is something that affects to use the traffic's terms affects the cost or quality of the article respectfully disagree with that judge because and the proof of that is in ca i was product because ca i as a trap is a little not in the same place not a curved scallop in the center and test their president the only way something can be functional is if it's the only way it can accomplish that task and then it's not the law no and i'm not suggesting that at all you know there's a difference you know you there can be different solutions to the same problem that's functional right and that's ok but here we're only talking about one problem and one solution ok and the problem is that you need a fastener with less surface material and a place for un compressed rubber to float when this pinches down on a rubber conveyor belt the solution to that problem is less surface area and a place for the rubber to flow it doesn't have to be a curved scallop in the center to accomplish that and there's lots of examples that if you look at page eleven of our brief there's a chinese fastener that has a new long gated scallop down the center of the ship doesn't make any difference at all it's simply a need to provide space on the surface on the flat surface of this passion or where you can cut away the web of metal and create room for uncompressed rubber to flow so in shape it's not essential you're not disputing though that in your advertisements you say that your type of sculpt and lower fastener profile extends belts place life less effort required for installation reduces maintenance cost those are all functional but that's your isn't it but that's different judge and saying that the reason it performs or works better is because of the shape the reason it works better is because there's less plate material there's less metal biting into the belt and there's a place for on compressed robert a flaw it could be any shape so yes we certainly we took advantage of the fact that this is an attractive design it is a scallop depth well you that's exactly how we marketed it exactly you shouldn't you but that's how to scalloped edge as being the way these functional benefits but the reason it works better is not because of its shape as a scalar it's because that just happens to be the place where we chose to reduce the surface area of the fastener and create the space for  disclose that later on on your own or after the one of the patent examiners discovered it anyway no well there was a different pattern examiner the reason why you can't write it to the attention of the examiner who is dealing with the three to six registration on our own for that very reason after the other examiner found it yes that's correct but the point is we did address the question of this shape and whether it was or was not functional in the nd declaration that mr west was and it went in if explained very clearly that the shape of the center scalp here the center center scale was not did not have to be that shape to achieve better by the lower profile because it's it's it's physics if you have less metal being embedded into the carcass of the of the rubber belt you're necessarily good it's going to be easier to put it on because you're just placing less rubber but at the same time you need some place for that compressed rubber to flow up into it can be anywhere in fact  exterior well as as a unit i suppose you could say that but the fact is this portion is independently nonfunctional but you didn't and that's a point that should part of your cases make your cases make specialized seating talks about this the keen case for example where you had the the stacking letter trays with the hexagon shape on the end of the stacking letter trees you still needed that configuration for the trees to step back but you could have a he it wouldn't affect how it works this this scallop could be anywhere on this and in fact there's examples in the record besides the chinese one where you can see there's there's gaps in between these fastener but where the rivets are if you scallop that side out you're still removing plate material creating a place for rubber to flow in the center here and you don't have to you could have a straight edge on top you could have a straight edge on top with an aperture below it that would create a hole which  i mean you said it did have sanctions value somewhat what's tripping me up is what the supreme court said in traffics that once functionality has been established once we see that this scallop does have a  functional role to play there's no need to engage in speculation about other design possibilities let's let's talk about that for once a because i'm glad you raised that you know that you know the court has come up with a formula for determining when there is strong evidence of functionality based on the utility that that formula looks at whether the patent discloses the central advance and that has to match georgia pacific other cases of yours that has to match the essential feature of the design right this court is never really this court is never explained what does the central advance mean i mean you're not sound like you're engaging in a patent claim construction in need any of these cases already i don't know what to do that no i have not i'm chris asked us to defer construction so when we're talking about the central advance this is a critic this important case in the court's jurisprudence here well it is important because one of the things that concerned the district court as well was the fact that  given for a limited term of years these days twenty seventeen at the time you had yours and trademarks are forever and so if your patent expires and you then find a way of functionally extending it for  that was exactly what was trademarked if you look at a case like georgia pacific the lattice pattern is specifically described in the pens all five pence said you have to use this particular pattern in order to make the toilet paper both here and softer if you look at a case like j franco the round beach towel claim number two says you got to have around tile if people are going to be able to get up and move around or just move around without having to get up as the sun changes direction those are all right in the claims of the of the pattern here there's no claim in this in the three way patent whatsoever that says you have to scalp the yet to achieve a better bite and and a lower profile it does no have it's item number ninety  the beveled smile it's it's depicted in the patent i don't deny that but the fact is that just because the patent specification used the verb we scallop the edge to reduce plate material and provide a place for on for press record to flow and in this in with that smaller faster this little guy right here you know that was also done to make it fit on an installation tools so that's different this one doesn't need to have a scalp to fit on the installation tools that you have the reason why it's not functional well there i don't know hang on a nd the patent mentions it says with the scalp edge forty six there is less plate materials nice from the ri apertures thirty two right and on and on so you have presented the p t o this exact design is patentable well from the state guest book from the standpoint of reducing plate material and writing a place rubber to flow but it doesn't say that it has to be this shape to perform that to perform that function it says it's going to be scallop scalloping the leading edge improves the bite lowers the profile that's true it does but sort of scalloping the science so to placing an aperture in the center there's any number of ways that you could remove the plate material or provide a space for on compressed rubber and it to me but i want to get back to this point of how critical it is to define what is what does that mean  case yes i think it has to be you don't have a patent no i mean it's phillips should know you had one i agree john but we're talking about whether the what's disclosed in the three away patent matches the design element that's been trademarked and it has to be a match it has to be pretty much a perfect match under the case law that the claims the novelty of this particular item in the patent has to match the trademark feature and in this case what's novel about the three way pad this little guy the novelty is it's called the two rivet faster with teeth and if you read the patent all it really talks about with the scalloping is like almost in the size the point was they were t tried to create a smaller lighter weight v d m duty fastener that would hold you know as strong as a bigger one makes it later less metal cost less how did they do it they put teeth on and that's that that's why it's called the that's the central advance of the three away pet the central advance of the patent is not that the scalp it's not that will scalp infect if you looked at the two of these you'd see the scalps aren't even the senate ok but that's the point is when we're talking the advance then the that part of the scalp is covered i put certainly i mean how what are we going to do like do it rivet i regret i it seems to me you have a strange approach to this well no it's not straight i mean when you look at the other examples judge in the record of fasteners that use different designs including the defendant's fastener here they use different shapes in order to remove excess metal from the web of can't come up it is it's limited only by the creativity of the designer you can put these bevel or these these shapes geometric shapes any where you born on the surface of the fastener and achieve the exact same purpose solve for the exact same problem so it's is the macair lates case ok which was cited with approval by this court in the arlington specialities game in the materially it's case you know if you compare that case to georgia pacific both involving paper products and how they're fused together legs both the process patent and the product talked about how you fuse the material together and you need spaces where it's bonded together and they describe the pixel patter right but the point was the court found that those pixels could be any shape they could be hexagons they could be parallel of pits they could be any shape you wanted they would still work to hold the rope fibers together and that's the exact same point that we're making here this case is really just like the carolinas all right thank you very much good morning your honors and made a please the court my name is vincent small chin ski on behalf of the appellee conveyor accessories this court has never been presented with the type in volume of evidence evidence in functionality that it has before here today and the the th circuit has repeatedly affirmed summary judgment finding functionality and far less evidence and this makes sense because as this court noted the threshold is so low for proving functionality that is often resolvable in summary judgment as a matter of something i guess maybe i'll rephrase some things have so many solutions like the you know the handle on a french press coffee pot you know can be look like a figure eight or i suppose you could look like an arc or could look squared or could look whatever that nobody cares what it looks like so that's the kind of thing that might be a designator of origin which is what a trademark fundamentally is and he's insisting that there are just so many ways you could accomplish the function of letting this robber who's out that the scalloped isn't something that we should consider trademark functionality but with all due respect your honor that position has been rejected  only by the supreme court in traffics where it articulated that once a product feature is found functional under the it would formulation that the commonly referred to as the traditional rule or the engineering driven rule of functionality there is an alternative designs cannot serve to prove a lack of functionality so what you define for me then what what definition of functionality you think this court ought to you with respect to the three to six registration off or anything i mean you know this is a general question of trademark law certain so something is functional in blank the supreme court laid that out in traffic or said is essential to the user purpose of the article or to affect the quality or cost of the article what we have here is a clear a clear both admissions statements and legal documents such as the three and twenty years of advertising promulgating the functional benefits of the leading beveled scalloped edge all of which point in the same direction they all establish that the three dollars to six dollars registration is functional as a matter of law the fact that  it matters little how many alternatives could be available that this court expressly rejected that argument especially seating so it's so in your view then under the supreme court's traffics definition it's functional if it's a wavy scalloped pattern for the leading edge you're not talking about the sides but it would be perhaps equally functional if it were a dental type you know up and down square corners but that wouldn't matter because because  the st one is functional or the set it affects the cost quality use product correct and if the evidence demonstrated that that alternative configuration was also it was functional and yes it would have been it would be functional suing a i believe there's testimony that in this particular context of fastener actually can have those ninety degree turns a happy have to be radius to just giving manufacturing tolerances and whatnot but manufacturing considerations aside yes if it performs that utilitarian function it serves it serves to effect the cost or quality of the article under the inwood formulation and its functional traffics doesn't say alternative designs are never functional and ca hasn't taken that position but what it does say and what the th circuit has repeatedly echoed in georgia pacific versus kimberly clark and specially seating in j frankel is that once you get to once you have that strong evidence of functionality under the engineering's utilitarian and driven test alternative designs don't prove a lack of functionality the perfect example  example is the ga pacific case pointed out by opposing counsel there you had the diamond lattice pattern on toilet paper and you had utility patents that disclosed the benefits you had advertising the touted the benefits the court then went on to say even if the number of alternatives is  numerous is the term that they use it lip matters little the alternative designs cannot make that particular design any less functional it's still functional from a utilitarian standpoint and thus falls within the province of patents trademarks as your honor noted conserve and protect a particular feature for an indefinite period of time thus the court has to be wary about protecting and stifling innovation for functional features that's the province of patents they so is it your view that once the patent expired your client was and what's important and so you're able to look at that and say gee you know make sense have a little look down there the smile so to speak the beveled smile and so we're going to do that too i personally am not but i assume my client my client is more than capable of doing so and what's important to know here is if if you really compare the cases that have stated that alternative designs once once a particular feature is proven functional trying to design designs can't prove a lack of functionality is it is really comparing that to the cases that opposing counsel pointed out the bodum case the macair lates case and there the the important distinguishing feature is there was absolutely no evidence in the record that actually demonstrated or pointed towards a finding of functionality bodum is of perhaps a perfect example there were no utility patents disk even disclosing the trade dress feature much less describing the functional functional benefits of that tree dress feature there were no advertisements that were promulgated that touted the functional superiority of that particular coffee press maker and in fact there was an expert testimony from both sides basically the handle nobody was talking about the press part of it and bodum correct you're under french press coffee that's what you're going to do i believe the plaintiff in that case that no evidence there was no evidence in the record whatsoever that demonstrated functionality in fact there was expert testimony that said this particular design was more costly to manufacture it was particularly complex and evidence that tended to weigh against functionality given that there was a complete absence of utilitarian functionality or evidence demonstrating utilitarian functionality the court then also considered alternative designs to make sure there wasn't a competitive necessity for these particular configurations or wasn't by precluding competitors from using this type of handle or this don't would it wouldn't stifle competition artificially somewhat but if what if we were focusing on the seat you know they have these fancy little feet on the the bottom things and somebody else wanted to have just a little but either way the function that you're achieving is to keep it up off the table a little bit so that the coffeepots not sitting there just flat on the table that's a function right can copy and put a functional foot it was what was at issue was those particular feet there were an eight feet there there was nothing in evidence that demonstrates they are formed any better then a standard foot model that's what mr vinson is insisting there's no evidence that this smile deals with the squeezing of the rubber any better than the chinese design or various other designs that might be out there with all due respect your honor the evidence actually off points directly  contrary to that there is the declarations which wasn't really discussed on the in councils opening but i would like to talk about the three way down i believe the police brief with respect to the declarations it's clear there's an express admission by mr westfall repeatedly and multiple declarations that the three to six registration the earliest the product configuration the central beveled scallop portion affects quality goes on to explain factually how this affects all reduces wear and tear it lowers the country to his own interest which but the reality is it was under oath the examiner posited the question miriam his exact terminology from his prior declaration where he defined the trade dress as the leading beveled scallop edge and he and the examiner posited half a dozen questions directly directed directly towards that trade dress these express emissions under the input test are akin to the plaintiff's declaration in arlington specialities where this court only considered the declaration from the plaintiff found er and similarly found that those particular that particular feature in the trade dress of the i believe it was the dockets for men's travel bags was also functional but turning to the three way pat and the crew a plan is actually clear and it's strong evidence of functionality in this and the central advance are of the three way patent is not in fact what is trade dress or i think tied into that as well as the fact that the three away pattern allegedly doesn't claim that three to six trade us st of all that's factually inaccurate and also it's legally irrelevant on the on the factual side as judge christie appointed out of the district would claim three does in fact claim the contoured outer edge that wraps around full of i believe it's in column twelve of the and of course you can't get a patent unless it is useful and functional etc you don't get patents for things of course your honor and and you know terry what we have here in the three way path and i think it's point important to point out and i think it serves as a important distinction between the cases such as  negate the teaching of the three way pack which expressly states it was known in the art to bevel or coin that front leading edge it was also known that there was a problem with that could that point edges and that it needed to sink better so it removed that material and created a scallop there is only one of that were disclosed in the georgia pacific and in that case that particular diamond lattice pattern in the trade dress was still considered functional and i think i'd like to know what i'd like to finally go on i understand though that  even with respect to seven for nine patent these trademark applications shouldn't come in until it was on the edges expiring correct  not be the identical fastener again not only is that factually inaccurate which we pointed out in our briefing but again it's also legally obvious to rivet vs five yes your honor and there's a kind of a couple layers to that st and foremost  three to six registration despite flexibles repeated attempts to characterize it as a five of a fastener trade dress is not limited to five rivets if you look at believe it's some summary judgment exhibit nine it's the three  registration the only portion of that fastener that is claimed is that center skull the rest of that is and is in dotted lines and that's not a part of the trademark there could be any number of rivets that also utilize that particular center scalp it's also contrary not limited to two rivets i'd like to also to point out that this central advanced argument put forth by counsel has already been decided there's no need for this court to redefine what the central advances one of the arguments was the title of the three  evidence of functionality in j franco this court dealt with a circular towel for tanning and it noted that the circular top provided tenners the ability to rotate three hundred and sixty dollars degrees over the course of the day regardless of you know concerns about skin cancer and what not but the patent there was not directed solely to a circular towel it was the title of that pattern was actually a tell the converts into a bat the idea being that you could turn that talent to a satchel tied up and hold it on your back even the independent claims much like the independent claims here didn't claim a circular talented non rectangular top so the idea that that title or the independent claim somehow lend credence to the central advanced argument is ill founded this court is already decided that but actually includes a parent article not necessarily in the claims there's no requirement that the particular central advance be claimed in the in the past in order that it be titled in the end it's merely a you have to look at the disclosure of the pattern that's what traffic's teaches and that kind of leads somewhat into the nd point which is this some this imposed requirement of identity that somehow the three to six registration there are the three away pattern i'm sorry is only strong evidence of functionality of the three to six if there's ends of that lower plane of the rectangular side the traders side issue was related to a dual spring configuration that would attach to a single corner much like a triangle or perhaps a diamond shaped sign and that was actually one of the arguments posited by the pla the plaintiff said well the utility patents only cover this particular cover configuration of dual springs the trade dresses for this clearly different configuration of dual springs this isn't evidence of functionality supreme court said that matters little that makes no difference what matters is what is the utility patent teach and what we have here is within the through a pattern there is that clear disclosure of the trade dress in the three dollars to six dollars registration there is a description of the functional benefits of both beveling and scalloping that leading edge and there is the claiming of the under that in would formulation alternative designs do not negate that functionality you can't bring a patented a feature that falls within the province of the patents back into the realm of trademark simply because there's other ways of doing the  same thing don't say what they say but they all lead to the same refrain and the inescapable conclusion that the three to six registration is functional as a matter of law the district court's decision or the granting of summary judgment was less proper and should be affirmed thank you your honor you have a question of fact on the issue of is there strong evidence of functionality you know there's a specter of the cases and on the far end i agree is both of where there was virtually nothing in the patents that were discussed and at the other extreme you have something like georgia pacific where it says you have to use this particular shape you know when you have carlington specialties saying functionality that the bar for functionalities so low that it can often be decided is a matter of law yes but that's only if  says you have to do it this way for it to work and that's the crux of defining what is the central advance of the patent and that's the problem in this got was the high bar no that would not that is not that is how you determine what is the central advance in order you're when you're looking at the spectrum of cases in this area when you have a question of fact that word summary judgment when don't you have that question of that where is the strong evidence you got to find central advance and in all the cases where you have found that p strong evidence and the bar's been lawful are situations where the patent says you need to use this shape for it to work ok when you look at a case like macare laid out of the th circuit they talked about shapes and they're the different shapes the pixel patterns the little beads but they didn't have to be that pixel shape in order to work and that's why the court found that was a question of fact and so if you're you know you're not going to be we're not to be engaging patent claim construction in these cases but you do need to make it clear to the bench in the bar when you have a question of fact and don't you and that all keys off of where is this what is the central advance and in this case you can talk to blue in the face about the fact that it says you scale up the edge there is nothing in the pattern that says you have to scale at the edge in this shape for it to work this way and that's the crux of this case that's the key that's why this case is like  said pixel pattern but you could use hexagons or any others doesn't have to be any particular shape to work versus georgia pacific where all five pat said you got to have this diamond shaped lattice pattern to get bulkiness not nesting and softer tissue ok and that's to me the most important thing about this case is the law in the circuit and defining the specter you know at the broad end where you got trafficked macare leads j franco clear is a bell that if it isn't done this way it won't work our patent doesn't say you have to do this shape for it to work you just have to reduce the plate material united again i just i'm going to interject and say it's our supreme court doesn't say that you have to show that this is the only way the patent will work that's of hurdle for you i agree but they do use that term central advance and that's what we need to know what that means if you're going to say central advance and ok the central feature strong evidence thank you thank