chronology of the this industry and the evidence that is in the record shows that this was a sleepy industry that had not had significant developments in this particular technology for decades show it on again on that same page we have a sequence of photos showing the different designs of that super screw in eighty nine they changed their design the relevance of those three designs is that none of them showed  that the people appreciated the problem that mr rush came to appreciate by coincidence one thousand nine hundred nine when superscript made its change and design was the year that mr rash became involved in the industry he started cleaning pools for a living and as he was cleaning pools and using these tools including the superscript and including the collins products r eighteen that's in the record that was in the patent that he filed he realized what apparently nobody in this sleepy industry realized that there was a problem with these tools did not in fact allow the easily into the net and as you normally move the tool through the throwing pool it presented a flat face that actually blocked flow of the debris into the net all of you would you normally be pushing this device to scrape up the leads or pulling the device to scrape up understand what i do as i do the normal use that we're talking about and the front of the device is here it seems like the columns would work like what doesn't ok let me move from one extreme to another if you were pushing the columns device horizontally it would be an effect like but that's ok but you don't push the hole at horizontally because that would be the top of the water you stand above the top of the water and sort of push that tool horizontally you'd shown in the drawings maybe prism and so as i put it down not just to the water level but further down into the water to the bottom of the pool where the debris is that i need to pick up and so the angle of columns gets steeper yes and  normal stroke columns becomes a vertical face or even more depending on where you are in the pool but that gets us to the question of plain construction this is where i started having trouble if the clean construction the key leap something that is being held up like that as you say looks like it wants to have something that spurred down it at a cheaper angle maybe even curvy up a little bit so that you can scoop like this but why is that why is hundreds of people told me how how useful this device was or there were lines around the the building to buy but there's no foundation of any sort or anything system and there's no time there's no place there's no pretty name or identification or participant you need all that stuff in order to have a  to that level of detail i don't believe it was in the in the any level of detail your honor there is one compelling beyond there at least two more facts that i want to make sure and talk about today with you the australian patent that is the only new piece of evidence that was not before the part of the examiner that the district court relied upon as saying that it also showed what the colophon seventeen instead the rest of the vice is a separate member that clips on to a friend and the separate member is where the slope element occurs so the australian patent does not have a huge shape element that can be clipped onto a frame instead the net of the australian patent is connected to that sloped frame by screws from underneath for all those reasons the australian patent is not as rel inquiring about the same front shape like the one seventeen collins patent it has that same orientation so that as you push down to the bottom of the pool you're going to end up with that vertical face where the debris can't go into the net what that indicates is that again over these decades leading up to mr rush's invention the the purity company collins development and now the australian filing none of them appreciated that they needed to address that in fact that they were all apparently where of that problem this is relevant to perhaps the most damning evidence to show that this is not an obvious invention is that the appellate shortly after mr rush brought his patent his product to market made an offer to buy the patent and to buy his business that to me is tantamount to an admission that because they had been in the industry they knew the products they knew these decades old designs that have been out there they look at his new product and they recognize that it was new and it was different and it was work i they made that the court joshua so on behalf of the appellee in this case this question affirmed the district court's finding of obviousness of the asserted claims the issue before the district court was whether a person of ordinary skill in the art would find it  mr rush had admitted that your eighteen included every claim limitation except the smooth surface and that's in the record at two fifty four to two fifty five or twenty fifty four to twenty fi make very cheap to make and so there was expert testimony that a person of ordinary skill in the art of found it obvious to modify that shape to be really any shape that you want including its move shape mr rushton and his experts did not  recommends that there's no evidence of the record regarding the orientation of collins or the australian patent in rush's brief that working the seventeen and forty seven to fifty one re discusses this there's no evidence cited to support  the contentions about how the device would tilt when it's used in the water similarly at the reply brief it at pages one through seven there's no evidence supporting these contentions about how collins would be tilted if it were used in a i ask ounce well i meant a shows the device moving through the water and there's a flow pattern shown going over the front of the australian rate during his deposition mr rush and emitted that accurately reflected how the water would flow over the front surface of the rake is it was moved through the water and that's that appendix fourteen fifty five to fourteen fifty six so the evidence in the record is that the rates do direct agree as required in the pattern as they're moved through the water also again there's no dispute that the b or eighteen meets that limitation so our primary reference here meets all limitations in the pan except the smooth surface and the smooth surface has been found not only in the pool arc but there are a number of other art such as dust honestly i just want to make sure i mean assuming we agree with you we don't need to remember to have the judge that corrected to make it clear that you agree that it doesn't invalidate entire pack that's correct depending claims three four and five were here in terms of the secondary consideration the nine i guess is the other what's at play no no that's correct play minor in terms of the secondary considerations again there was never any next at the stablish between secondary considerations that were alleged in this case in the allegedly novel smooth scooping surface as alleged earlier and that the district court noted it was really kind of hearsay and and anecdotal testimony  sale the inventor himself admitted there were a number of reasons that the rakes sold their rugged durable goods in the declaration submitted in opposition to the summary judgment of invalidity also customer service coloring a lot of different reasons that the rake stole beyond the smooth surface in fact there was no evidence of record that the smith service had any any impact on the sales there's also a claim construction issue raised in also the issue of a legit false evidence my point it didn't discuss those and so i'll rest unless you have any questions on those particular issues thank you for the  art and the actions by a tele that this technology these tools that have been in place have been there for decades and nobody had identified this problem until mr rush got into the industry and he was frustrated with that old technology soon as it was the last point i made earlier as soon as he entered use that the a pelleas came and asked if they could buy his company and buy his patent that's what would have happened for a person of ordinary skill in the art this was new this was different that reaction by the pelleas would carry on most independently of everything else should carry the question of obviousness all i was never in writing in the record as to how much was offered then i don't recall if it isn't good i mean it would seem to me that that might be very important in distinguishing between a case in which one was really quite concerned that the might have great forces opposed to a case in which the past can be eliminated simply for musicians well there was no question of infringement at that time they had their own prior art old dusty design that they were s the company up and he hadn't generated the sales yet but when they saw it because they were at the trade shows right beside him and they were that excited that they made that offer for the chaos or standard about the problem being a known problem i don't think is met here and so we're an exception to that and also a police briefer they say it's mouth there was no no design need or market pressure people were happy with the old product had the problem mr rash came in and he was not happy he's the one that s problem made the design and fixed i think your own counsel