i assume questions for you and then read brief it fifteen or more states of very inconsistent drawings and descriptions argument that you quote appear to be arguing that is what is labelled a side view should have been labeled a top bottom or  well that's an argument that we were precluded from making because of the claim construction but under proper claim construction when the written description is imported into the cla construction but that certainly would have been an argument that would have been available to council yes yes tox you stop i understand so the answer is that is what you're arguing you can't say i'm precluded or you would say no i don't have any argument here well yes i do believe that create inconsistency and is a basis for indefiniteness when there is an inconsistency between the written description and the drawings that's one of our positions there's a lot of other things that create indefiniteness in these patents but that certainly would contribute to it much of this stuff that i'm only asking you about that one position now i'm going to ask you another question in the read brief if fifteen or and says that you argue that quote some parts link numbers are in the table and they destroyed the assumption that for relies upon to create actual notice from the table the only thing that that table is good for is determining what parts will fit into the automobile it's not good for a specific accusation that been printed that does not hold up along all the lines in fact the very st line does not support that assumption and since there is not a specific accusation of the prince ment of a specific patent by a specific part you do not have actual notice ok turning to  by in grafting the ordinary observer test onto indefiniteness we said we if that's going to if the standard is going to change we need new expert reports we need new discovery with regard to the prior art which that is reviewed on a did novo standard and it can be decided based on the intrinsic evidence alone in this case so that is an issue this court can review turning to your spoliation instruction argument objected to the to the jury instruction not on that specific basis we objected to it and we believe we cannot we are not entitle to make that argument and argued as in writing the pizza states you can argue in definiteness and enablement under the general group brick indefiniteness and that's what we did welcome returning to the issue of infringement this summary judgment should be reversed because the district court failed to properly apply the ordinary observer test in its analysis or conclusions in that regard rather the order relies heavily upon the testimony new worlds own expert and in fact it starts off with a discussion of the testimony but that testimony cannot support summary judgment of infringement for several reasons as a preliminary matter the testimony relied upon has been corrected and explained under rule thirty with sufficient justification so the correction should be considered completely change and ada would be or yes to a no i mean he's come please leave changing his testimony and and the court had the right to conclude that that was not an appropriate fails to include a word that it should have included or i misspoke with respect to you know calling it singular instead of plural but to say my testimony is x y z and now it's the opposite  z is not a correction within the meaning of that rule your honor i disagree i think under rule thirty two you can make changes in substance and what the courts do is simply allow the jury to versions and to decide as a matter of fact now there are some cases out there from the st circuit the talk about an abuse of discretion but even if we apply that standard in this case which i don't think it questions are ambiguous importantly the conflicts created by the declaration was already in the deposition per example immediately after the question and answer that the order refers to regarding substantially the same the expert testified that he considered all be ornamental features in the design patents and found them not to be substantially similar that's a mediately after this question and answer so this testimony conflicts with how the order interprets the preceding answer and supports the experts correction and explanation that he misunderstood the question secondly the question itself we st to a single claim it claim design and the court had to change that in a sapan human to add to the deed to make it make them sense but you've got to stick with the original question so which claim is it that's not clear in the present issue of fa so when the when the court is interpret in these questions and answers it's drawing inferences imports favor which it's not permitted to do on summary judgment then a nd set of questions and answers are referred to on appendi which one in the nd set if you read it carefully and again the judges has used this testimony support summary judgment over all thirteen design patterns so it's got to be specific and it's not he's  look carefully on this substantial similarity what the expert is doing he's referring back to an earlier question where he answered in terms of substantial similarity in that they could be b questions that standard was never used never a part of these questions he was not asked to consider it in the light of the prior art and he was not asking what an ordinary observer would consider the proper standard was jury did not want to find willful infringement because they thought the accused product was inconsistent with the design pattern so that certainly supports the experts interpretation of these questions and answers and the sentence shouldn't have been treated as one collective entity but in the pretrial order and in the proposed verdict form didn't you treat them as one collective entity yourself entity and discuss them as one collective entity in front of the jury right because counsel for four expressly made the decision not to include them in the verdict for beginning with the infringement question that might count from the other side argued to you focused on i don't rata that was submitted by his declaration by his expert after the summary judgment ruling had occurred and i think district court's ruling judge god b was well aware of those statements and recited a number of them in his decision he also looked at thirty pages of side by side comparisons excuse product and  the court had noted at the notice issues were one for the jury to decide and there was sufficient evidence for the best thirteen patents at issue that there was no to the indefinite argue no argument about was not raised at the time of the jury instructions it was not raised in the th motion and even if it were preserved new world hasn't told you why it would matter what we do what do we do with the fact that the jury didn't think that there was substantial similarity with respect to at least one of the products so you are for one thing the jury was been instructed on what the standard is for infringement and i think if damages were appropriate and what those damages would be and there was extensive damages testimony put on there was an extensive argument about notice that was made to the jury and the jury was  discretion to conclude that there was notice and also that the infringement was willful there was a lot of testimony about kind of back door sales and acting to pay for cash and deleting inventory factual determination and on that i think it's important to note that catcher in his testimony to the jury at explained on cross examination that many of the things you'd identified as differences were just variations in perspective and he told the jury i've only been instructed to look for differences and he told the jury that he could results all of the differences that he had identified the examples that best in the appendix at one  to the infringement one of the things that concerned me is that it seemed like the even if we kept the fact that the new world expert made it certain things and and didn't have the right designs were all found in the product and that they differed from the prior art so when you combine those statements by the witnesses with thirty pages side by side comparisons and you can see this at appendix page eighty where the something similar it did a side by side comparison and in comparison after comparison the two products looked nearly identical and that was enough for this court actually in that case to reverse and i t c decision finding that they had been different so when you have the expert testimony from the defendant's own experts and then you have to side by side comparison i mean there just wasn't any other evidence to weigh on new world side ask the jury to decide that question they didn't ask the jury to be instructed on that question and that was not enough to preserve what is a separate and distinct basis declaration was filed after the summary judgment was granted the declaration from the expert was filed in the response to the summary judgment and it was within the thirty day period for corrections and it was because of that because the  eposition was taken so close to when ford filed its summary judgment but the important point overriding point here both on infringement and indefiniteness this case illustrates the importance of applying the correct standards in the design patent case the correct standard was not applied because gore versus white you got to do the comparison to the eyes of the purchaser and that was not done here and that would have made a critical difference because in this case the purchaser is a purchaser of repair parts and is trying to return the vehicle back to it's a good general appearance therefore the  observer purchaser is highly discerning that is something that has been admitted by ford in the i t c action when you talk about the side by side comparison that the that the court made the c not i'm sorry go ahead what does that imply what's a laser coffee it's it's an exact copy of the commercial parts but of  and also it didn't include the standard it's not clear that he was answering in terms of what an ordinary observer would believe a designer of more new skill only compares part to accuse patent under the proper test you're really looking  different things you're looking at design patent claim you're looking at accused part in light of the prior art which was not done in you're also referring back to be original parts so you're really looking at four things in the analysis and the questions were not were not directed to that to the proper comparison finally there is no finding or conclusion by the district court  purchaser would have considered these to be substantially the same and without that statement the summary judgment is fundamentally defective doesn't apply the right standard and and cannot stand in if and if it falls then the judgment on