the next and last piece for argument is shoot bag closures versus quick l a little more towards judge walker would be i think helpful for sliding that way and you can lose as i tell you what watching those chairs out of the way just move that move those two chairs out of the way or one of them anyway located in the yakama valley in washington state he was inspired to come up with a flat tab made of a strong but flexible plastic high impact polystyrene due to the need to close the vinyl bags plastic tent form the core functional features of a plastic bag closure of course these features are free for anybody to use in the early one nine hundred sixty s quick locke expanded its product line from the first hand applied closures of the fifty's to include closures that can work in automated bag closure machines does the concept of closures and strips that can be fed into a lock tracking on an automated machine of an assembly line was born along with most common form of a quick lock the closure that is featured in quick launch logo its letterhead and all of packaging and marketing materials this is the shape  of the poster board hundred six after much back and forth about whether quick lock was seeking to protect the functional features inherent in plastic bag closures the p t o issue d o four three registration as explained to the p t o and acknowledge by the district court the in contests flow for three registration trade dress includes the features of the square to slightly rectangular three dimensional can for configuration of the perimeter of the closure bevel portions its each corner and  and the hole in the middle comes in a variety of sizes to accommodate bags of various weights and sizes and is not part of the trade dress that was exposed and was explicitly disclaims while the  the currently the best seller the j n r p closer shown here is currently the best seller of quick lock closures and is covered by the zero four three registration is the district court recognised quick lock does make a variety of closures for automated bag closure machines of different thicknesses heights and weights for the many different sizes and weights a badge the quick lark closures are used with whether it be for the produce or the bakery industry many of quick locks closures are not protected by the zero four three registration but work in the same automated machines including the eight seven two machine discussed in the brief to work with different sized closers one only a plastic bag closures that can work in a quick lock machines is actually much broader than the shape protected by the zero four three registration and many of these closures are on the market today which your strongest argument just i think the starting not is really the starting point is that the district court made a fundamental mistake in determining that the the findings of the patent and trademark office  granting you know for three registration was entitle to little weight when in fact the registration up by certainly not by any but it is the least entitle to a presumption of validity and not little weight yes and i would further point out the court erred in excluding the foul wrapper and all the argue the arguments the quick lock presented to the patent office that were accepted by the patent office and eventually granting you  three registration the functionality issue was fully vetted before the patent trademark office the patents that the district court relied on were before the trademark office and were considered in determining that was essentially a functional item that it had a competitor would would would have equal functionality right i mean and therefore it could be  know it could be protected i mean i don't understand i'm still don't quite understand how you can get around the judge's judge's findings apart from quibbling about you know how much weight he gave to the to the registration  to your honor's point that plastic bag closure covered by the zero four three registration serves a functional purpose yeah it closes back right now with that said the bag closure and better to eating product have to have basically the alternative designs don't look anything like the closure protected by you for three registration and is ample evidence that in fact you can come up with designs that don't look like quick lo have to show a likelihood of confusion yes she did certainly did and that was a there are the refining is against you on that score that that is true your honor but we believe also those findings were arab if the court or the package differently sophisticated buyers here this is not something that says sold on the street it's not a knock off that sold on the street these are sophisticated customers they can either buy your product or buy the other side's product not because they're confused but because they say they believe their the product is better well first of all as to the package and by the time a customer se are different when they're sell it to that sophisticated customers who know who the sources i don't think there's any question here about confusion as to source you able to produce any witnesses that said you know i wanted to buy a quick lock but i ended up with this product because i was confused but in this case should they have not yet entered the market so there would not be that evidence is the point to be they made it clear that there closure works with quick lock machines so the customer could be confused as to whether that that somehow quick like approved those closures or they were authorized closures that could be sold that work in quick lock machines  it did not appear that she day intended to make any effort to disabuse a potential customer of that notion and that harms the reputation of quicklime to believe if there are other closures on the market that it not approve of or come from where you sit down because your red lights aren't just explain what these various pictures are just slide it back just a little bit mr mcquillan so i can see there we go thank you my connection by the expert in connection with this case to show that they would run and the believed that there would be potentially likely to confusion through an association of my client who is does make replacement closures for quick lock products by saying exactly that that they make closures for quick lock products for this machine right here and that he thought there would be harm their potential or that would be confusion and then he can convince said that it harms quick lock if there are closures on the market that it does not approve of i mean that that's really gets at the core of what we're talking about here i mean my client should be allowed to and now it is and if they didn't before the decision but now they are sell replacement closures for these machines that are the standard in the industry i mean it goes to show also these products are many years old and up until my client there have been no meaningful competition for people selling closures that were replacements for these machines now we don't believe the standard is that it has to be have an effect on competition or that these features need to be essential the standard is very clearly set forth by the supreme court well as restated the supreme court in traffics and that has whether it has really got it right rather than do it by memory u court's decision on that was accurate and certainly well substantiated its role as a fact finder but many of them the very fact that something could be on so long and that billions of them have been sold in all fairness i want to overstate the market cost much less than a cent other billions of them been sold with no one else selling closures and i think that goes to show the utility of these this is this product shake so what let me just turn you back to traffic for a honor but my reading of traffic's and of course we've read it very extensively in connection with this case and of course the progeny of it including the christian louboutin case is that the two elements were originally set forth in what are whether it's is with respect to aesthetic functionality that was my understanding of it and again i apologize if i have it wrong but because a static functional has a different standard and that was you can see in the christian louboutin case with spector the color of the soles and as far as the well i won't answer questions they don't ask around let me go back to where we were as you said like i said before judge walker the district court held a bench trial over the span of five days and reviewed a great deal of testimony and physical and video evidence and was able to make credibility determinations that it was his role to make as a fact finder and in addition not just the  testimony the district court was able to observe and handle the bag closures not just the large versions but also the small ones made out of the hips plastic that are issue in this case and not just the closures the district was able to examine the lock track mechanism obviously it's connected to a much larger machine but where the closures are actually applied and the pressures that are put on those closures is actually applied from the locks rack and he had one right up there in front of him during the whole  trial virtually the whole trial and nearly notwithstanding that nearly all of quick locks claimed errors addressed factual findings a quick lock repeatedly argues in its briefs that the district court erred in giving way to certain evidence rather than other challenging the evidence that's right yes yes your honor and i guess with respect to that i guess our there was only one this case was about the performance of a high impact polystyrene plastic device in a large machine that's really what it's about and whether it's functional in this shape there was only one independent expert that is an expert in plastics and hearing that was put on by sh cook he is as knowledgeable as the record shows as i would submit as anyone in the country on this sees both in his formal education in his work experience and his position as head of the plastics department at penn state he made these determinations and they were credited by the just of course experts are always sort of walking or in this case sitting in dart boards and you can always quibble with what they say but quick locked in even put on an expert on this topic the person that they want this court to disregard or to overturn the district court's crediting of dr cook's testimony is in favor of their employees mr hart who has and with respect to the issue of the wait to be given is a question here in my mind about these other other examples there that they all seem to be able to fit into the machine correct and  so there isn't much difference between the shape but i'm not sure that if if you would come up with one of these other shapes down here the but the bottom to either of those but they wouldn't still be complaining about that  i mean you know it would be a variation in terms of the the way the closure looks to us to to some degree but there are centrally rectangular and they're essentially have a hole in them and they're used in the same way they have the opening at the top and it's not like i mean i don't think a customer would necessarily be less or moral that it would obviously now they say they would not however and of course in terms of the differences let's not forget the differences are magnified as with the picture so everyone can see it when they are an inch large the differences are much smaller but i will say this as as you said the most important thing to my client or to a bakery or to never is selling these closures is to get them on the back there's no one who buys bread or these closures because they're lovely or anything other then they want to make sure that when they they can do just with a quick lock closure does get it on six thousand bags per hour if it stops there's a whole build up  and there was testimony in the trial i'm not sure if it's in the appendix but certainly in the record from the designer of this closure that they wanted to be as far away from the quick lock closure and still work there was nothing magic about  what was the testing that was done on the bottom two that indicated they could also work maybe it was done by quick lock and they had a strip of each closure made out of there were  three d plastic printed so it was a different kind of plastic and while the final test they did they ran a strip through automatically and it went on to the bags three consecutive bags and we submit that that's not an adequate testing as a matter of fact i think it's not quite undisputed but it's pretty close to a disputed because quick locks evidence was that they would do at least a roll before they would introduce a new role as three thousand closures before they would introduce something into the market and for the opening brief for the reply brief quick lock itself said that the testing showed that there could be further testing to see whether it was marketable not that it showed that it was marketable but whether it could be six thousand six hundred in mind for something that's the number per hour hour of the year that's not the number of closures and i know what that's that's what i was looking for a real of several that see if that's the closures per hour they that kind of a test was to customers and if it doesn't go well if you just have one they'll just switch back they don't want the most important thing to these bakeries is that they go through supposedly let me pose you this is a real life example for me  on occasion a carpenter and i use a swingline staple stapler and i get sweyn when i buy it or i go get swingline staples but occasionally i can't find swingline staples so i go and find craftsman staples which say they fit the the let's say swing line invented staples and stapling and i have no reason to believe they did but let's say they did and they had a patent on it and when everyone would go to the store they would say they might even call them staples unless they went to staples and protection for the staples and after that expired how someone else going to sell products that work on the stapler i mean with a staple it's not such a big deal because well you can buy another brand of stapler it's not as big a deal you which don't want to it's you know money but with an eight seven two machine you either have to get a new machine or it as they said you have to get a new a new lock track that's of course a purely functional him i mean there's no question about it you don't staples don't come with you  no bells and whistles on them as between money and anyway it's just it's one piece of wire that fits a stapler and i think you're ever siri would say that that's probably not an after example in that sense because there is there is this is capable of some variations whether it proved it or not there's no question and still be functions still work to get the machine yes well staples do come in different sizes but that is true but this has to fit the sta true you're talking purely the world of functionality i would say it is less elaborate but i mean we're looking at all the designs in the bottom there that's not very elaborate either this basically square shaped closure and it's not the very similar to other examples of protectable trade dress like the example used in forgive me was in quality x or traffics by judge scalia justice scalia excuse me of a designed to work with these closures i mean they had the closures and they wanted the machine to work with them and they that's what they function was they're designed by engineers not by industrial designers like the expert brought for by a quick lock this is an engineer product designed to perform a certain function because it's going to fit through a truck in a particular particular dimension and come out and essentially be able to be inserted at the same point that every other thing goes through their works is going to is going to that's right and there may be other i don't want to say i'm certainly no plastics engineer and there may be other shapes that could work in a lock track in the current dimensions but that's not the test the test isn't whether this is the only one the test is whether this shape has the you know contributes to the function and by having smooth sides it does make it more predictable or as as smooth as as is necessary by having as much plastic within it that makes it  the weight issue of the p t o i mean we believe it's mostly in our brief but it's want to address very briefly the standard of view for what it's worth i think that's a sort of a hybrid one i mean whether  the presumption should be applied and we believe it was on page one thousand of the opinion that there presumption was applied to this registration that would be a to novo standard however how much weight to give the registration you think that's a fairly simple shape and you know kind of like a staples and simple shape but the reality years quick lock has been making its closure since the fifty's there's been very few other competitors in plastic closures with quick law that this shape with the beveled corners and the so substantial a square shaped and flat perimeter of flat size of i well known to be associated with quick lock when when you see disclosure those bakeries those produce makers of that's quicker you look at a staple you'd be hard pressed to say oh i can tell who made the staple so i don't think it's a fair analogy at all the speed at which these run through the machine the maximum speed is about sixty six hundred per hour the typical speed is more like thirty six on sixty per mi the testing that was done was at that speed and it was done both by quick lock and by ship days engineer judaize engineer in fact used the same material that is used with the commercially available closures and those were according to him appeared to work so the question became is whether and we believe the district court was wrong in concluding that the level proof to show that there were viable alternative design to required to show that there is each could immediately enter the market and people could buy them today and you had to make them at that level and prove that we believe and mr hart who was discussed in some detail in comparison to dr cook mr hart is the director of engineering a quick lock and has been with the company for over thirty years he works with these machines every day he's running different closures through the machines the machines all you need to do this without a lot track it's an item that cost one hundred bucks or so takes fifteen to thirty minutes swap it out and you can run different closures ones that are much higher different shapes with heights extreme rectangular shapes that would not be covered by the the the zero four three registration to the point is there's a for right it's not just these alternative designs these would work in the same lot or you would have to do anything but put in a new closure but with a simple swap out of the lot track you can put in a variety the possibilities are practically end sizes of the closures you can put through the machine the the other thing about dr cook who was their expert who specializes in plastics material he did the bare minimum in analysing analyzing these closures and and and speculated at length about the problems these closures could have but the fact is he never even inspected  machine prior to root disclosing his opinions he did not measure the forces applying to the closures nonetheless he speculated that well they could break or they could do this but the material used high impact pol e is very durable it is very strong the holes in the middle come in a variety of sizes there are very large holes in the middle when you have a thick back and they don't break this is not a realistic concern but he speculated it could be a concern  it is this is the district court found that the decision from the patent office was entitle to little weight because it was before traffics that somehow traffic's changed the law on functionality and fundamentally the not do was find that where there are caught us that there's an expired cat not disclose the the feature in the trade dress and his claims are described in a functional way and we not describe or claim the trader's feature in functional ways does it is appropriate to look at alternative designs and courts do it all the time what you're saying here and they should not  saying that where the court made a mistake was finding that traffic somehow changed the analysis and a way that it could discount the registration of the of the trade dress here is part of the traders now that the claim does discuss having a bag close the mouth but that can be accomplished in a variety of ways that it doesn't require shaped inlet at a ninety degree angle and where there are a multitude of ways to perform that function we don't think it's appropriate to read that claim language to find that therefore the v n light is necessarily function but isn't it the more i mean i'm just thinking about this from a practical perspective only leg  i mean isn't that the one that makes the most sense i mean if i'm suddenly trying to stick something on a you know a constricted rope baler twine whatever you want having something with a v in it  got you know the slot opening at the end it will grab it on the other side well and in fact i mean that the bags are pulled tight so there are thin line when they feed into it in the understood and that the two sides of the closure can so if it would you want something that grabs what it's going to come around in the first instance which you know you can do it with a flat side well where we're where do you hit it where you hit the thing that you're trying to grab around  have a curved surfaces leading that there is a slight possibility  on a v shaped unlike so it it is not the the most optimal solution to new thank you your honor thank you thank you both think and helpful arguments are going to reserve decision in this case the remaining