venue series his appeal focuses on the design patent i intend to rest on my papers with respect to most of the issues concerning the utility patent i'll focus here solely on the new trial issue and will save the remainder of my time to discuss the important matters of  st impression raised with respect to the design patent the patent here claims a thirty to seventy percent coverage of he directing elements over the inside of a garment after a nine day trial the jury was asked to consider whether a patent was anticipated by or obvious in light of prior art that disclosed no more than five to forty percent coverage and top away from any additional coverage that is a quintessential overlapping range which this court has addressed in numerous cases and is a somewhat specialized area of this court's jurisprudence the district court chose not to give columbia's instruction number thirty three to properly inform the jury how it was to consider the issue of overlapping ranges cirrus has identified no flaw in that instruction instead the jury was given only a single instruction on the law of open overlapping ranges that was an erroneous explication of the law provided by serious serious expert from the witness stand who have overlapping ranges you that really only had two issues it had the validity of this patent and had damages on the other patent there were days of testimony and critic ality instead as i said the jury was given only a single instruction and that was an erroneous instruction an erroneous explication of the law by serious expert that same expert put false information before the jury testifying that fought injury disclosed a single with thirty six percent coverage thus the jury was not appropriately instructed on the critical issue of how to address overlapping ranges but more importantly the jury's verdict was tainted by the false evidence possibility by serious and it's expert everyone agrees to the critical facts on that issue dr block never provided an opinion that fought injured disclosed a particular percent coverage sirius was asked at trial whether dr bloch planned on providing such an opinion demonstrative they were seeking to enter into evidence and the testimony that would support it would not exceed his expert report that's what the expressly told the court now i think the testimony there he's present actually did exceed his expert report for sure but you didn't subsequently object you said nothing you cross examined him you did not do the most brilliant job either despite how outrageous the mistakes were but you didn't object thereafter we objected to the entire line of do it's not the district court judge's job to figure out question by question whether they've exceeded his expert report you didn't bring it to the court's attention and now you're complaining about it so i mean i'm sorry but i think what he did was wrong i find it repulsive i read the whole transcript i think he exceeded his expert report and i think it was not since i don't know how you did absolutely nail him to a cross maybe that a nail into something when on you know cross examination you know he was belligerent i don't know why the jury could have liked him based on what i read but they did and you didn't object so there we have it that they were asked in advance of the testimony are you going to put on an additional number and they said well he's going to provide math that any high schooler can do and we objected on that basis i don't think we had a duty to after the testimony was provided go back and object again at that point it would be a motion to strike it i mean that the questions already that the information has already been given to the court and and so i think that the objection that we raised before the fact and i don't think that the that waiver has ever been raised by serious with respect to the timing of our objection i think that our jackson was was preserved by objecting to the slide in any testimony related to the slide and that was clearly testimony related to the slide which was false which did not cite the satisfied of the standards which clinton never had a chance to challenge his opinions before they were provided and it was an issue that went to the heart of both anticipation and obvious of sirius i'd like to address st of all this particular issue with respect to dr block testimony regarding the coverage ratio of the blocks expert report did not decide thirty six percent what we were relying on was the facts so the answer be yes the answer your honor's yes dr box report did not contain that thirty six percent and so what we were offering to the court was and we said this is high school math i refer the court to page two thousand and twenty other that thirty six percent was wrong right as a matter of fact it's not accurate no the thirty six percent as dr block offered it was correct his math was correct for the area that he offered and this is an important distinction and why among many other reasons this testimony was not faults this is not false we take umbrage with that with that characterization the record doesn't liquid or circles in the square you can figure out the areas of the circle if you got there the square in from trigger out the coverage percentage very easily based on that high school math what columbia was prepared to do and what they did was they crossed him on a different this columbia's theory was that that as represented by dr block is accurate but not does not represent what we would refer to as the unit cell the repeatable unit over the entire surface of thought injures fabric that he created and so if you turn to page twenty six dollars what you see is the diagram that columbia crossed dr block with this picture which is uses the there are three primary issues in our cross appeal i'd like to start with the summary judgment of the district court erred in at least four ways by granting summary judgment against terrorists in this case  deep we were the st district court to address the article of manufacture after the supreme court came down with its opinion in sampson v apple and the court the district court here largely adopted the recommended jury instructions for that from the department of justice with minor modification that's because the parties and the parties don't appeal that right the parties if they did raise agree that that's the proper task or is it simply a matter of this is  instructed and we're not challenging and i don't believe it's challenged here on appeal it was down below in various aspects except that we do challenge the burden shift that the district court imposed on sirius and that is a primary us you've got a design which is on a number of products and it seems rather strange then to say the design is the product which  through multiple products we both in fact and there's a large amount of variety amongst the the various accused products the court in its summary judgment opinion finding infringement didn't identify which a parsing for both infringement and potentially for damages for article manufacture between the different products like let me give you an example you have some gloves where the lining is sort intercooler with the glove and that's where it is then you have others where the lining is  irvine court i mean not damages but what the article manufacturers certainly here i think the the balance of case law suggests that the determination of the article manufacture certainly is an issue that should go to the nike wal mart which was a slightly different context but there the court went through a sort of exhaustive analysis of whether or not section twenty nine discordant profits under section twenty nine were was properly considered damages or something other than that in terms of the marking statute the court found based on an eight circuit survey of old case law that in fact profits under section two hundred and eighty nine were damages and damages typically go to the jury ok so if i were to agree with you that i think that summary judgment infringement were improper because there are a lot of different like you products which manifest the design in a lot of different ways and arguably summary judgment and say that should've been a matter of summary judgment on infringement it should have gone to a jury and we shouldn't be touching that damages it is that correct i think there are reasons why would be it would be way to decide the case on the constitutional issues and courts since you should choose that way you should always constitutional issues are just so important and so profound that it guarantees the supreme court has to take its which i'm sure you would love because maybe you have an argument from the supreme court to that would be fine i could see no your honor i don't believe so i think the court can address a smaller question that would actually be beneficial for other courts who are going to have to go through the same process again and then even the parties before you now we will go back on ideally if you were to overturn the summary judgment and then potentially come back up on this very same issue that's now before you what are you that smaller question that is who gets to decide how you decide the article of manufacture where does the burden l think i'm sorry i think i i misspoke and i didn't i didn't mean to address it in that form whether the burden should rest so i was not i should have said who gets to decide whether the burden should rest with the plaintiff in the st instance the ultimate question whether that should rest with the plaintiff or whether that should be shifted to the defendant as the judge did here and we think that question is not a jurisdictional question that touches the th amendment issue that issue you can decide and i think is properly before you and what else is there anything else or is it does that issue i mean because the other questions that have to be grappled with at some point are what is the times who decides what an l i i take that back here the parties are not disputing the jury instructions and so i i don't believe that that issue is necessarily before you accept to the extent of the question the bird shit  address the waiver issue that your honor addressed in my opening remarks dr block had the slide in front of him and he was asked to describe the slide and it is three paragraph answer at the bottom of it he said and that gives us thirty six percent coverage so there was no specific question that i could have objected to because he wasn't asked what is the percent coverage which would give me the opportunity jack you're saying that if an expert dramatically issue of the design patent and i'm not sure sounds like the panel has a number of questions on process with respect to the design patent answer one of the questions we did object to this particular jury instruction but we are not raising that issue on appeal one of the points that we thought was important is that the more than one hundred year old doctrine that's now referred to as the entire market value rule is perfectly a playable in the design pattern cont which is and that the court and congress have been clear that when you're looking at a design patent you're not supposed to apportion the design from the functionality of whatever it's applied to right that the dobson case and then the the value that's dealt with in the context of design patent damages instead whatever the design is applied to you figure out the damages from that and here the design their argument is that the design was simply appl a fabric well the issue is that that fabric is the name of the product right that heat wave product is a heat wave designed with wavy lines in the design and then all of their logos and all of their marketing materials all emphasize heat wave that fabric that is the distinguishing element it all of the marketing materials drive consumer demand for their products based on the functionality of that fabric so our argument to the jury on closing argument was look these are single component products and you're well within your rights to find that they're single component products and that's the end of it but if you find that the multi component products  we believe that the article of manufacture to which the design is applied are the i mean obviously on the ones that are made one hundred percent from the way fabric that's the article manufacture but but even on the gloves the article that the article manufacture is the glove as a whole and there's substantial evidence to support that but even if you don't go there even if you find that the fabric itself is the article of manufacture we said that the profits that are earned on the gloves are the profits for that article for that fabric because that fabric is the distinguishing element it is the sole source of consumer demand for those products it is the source of their market and without that fabric that has the design the design i mean if they replace that fabric with some other fabric that they can sell gloves that in fact they did but and they've pointed this out there are gloves that they sold that don't have it and then there are gloves that they sold that did have it and  are evidence that consumers want to purchase this or that they sold it based on the pretty design as opposed to the useful yes correct but i don't think that that's the obligation of the obligation is to show what the damages what the profits were as it was framed to the jury it doesn't have anything to do with that but our our rd argument was if you should find that the article manufacture is the fabric itself the profits that they've earned for the fabric if you have to figure out what the profits are that they weren't on the juries there's a challenge to the jury's determination of damages which is based on a determination that the article effect manufacturers the glove itself regardless of whether it comprises you know you can see the lining or not for example right it's all of their entire products that's what the jury's damages award was based on was profits on their full product the profits of the full product that was the juries of germination and we are going to have do you think this is a question for a jury or for the court which which questions the question of what is the article of manufacture we believe that it's that it's a really a question for we believe it goes with the ultimate question of damages the ultimate question of profit calculation of profit it would actually be determined by whom and because we believe that that is it a question for the court or for the jury but we believe that both are questions for the court so because the judge to decide for the judge to decide correct so because  the st question heard because the ultimate question which is what are the profits is a question for the court to decide we believe that the subsidiary questions to that ultimate determination are also for the court to decide how do you respond to the doctrine of constitutional important point which is that you know let's assume hypothetically that we make a determination that that is to current hearing by granting summary judgment of infringement and we think it should be thinking then how do we address and provide advice on white who should be deciding questions of damages and the design patent context and it's possible that the court doesn't get there i don't have i don't have an idea if the court reverses on the issue  infringement which we don't live would be proper i don't have a suggestion about how the court voids the avoidance issue gets to the question or instructs the courts about who's supposed to handle the the issue going forward we believe that the hard candy case provides exceptional guidance to that and perhaps the lower courts will be persuaded by the rational provided by the th circuit in that case going forward but maybe it's beyond the purview of this court in this circumstance i don't think you like the entire market value will doesn't apply here because of the guidance from the supreme court and samsung v apple sets out a separate allocation structure where you look at the article manufacturer and then you determine the profits attributable to that article  manufacture if it's less than the entire component then you figure out some lesser profit that the the standard for finding entire for a pint tire market value will is very very high bar integrations two thousand and eighteen you have to find that the design in the damages were all right it's absolutely correct your honor and it doesn't make sense legally or under the circumstances here there was significant testimony that there were many other factors that users or customers would consider into infringement no because i polo on your shirt which is just one little thing right here it's all throughout that's exactly right your honor i like your dealt with a complex three d shoe where there was an admitted copy of the chute design and on that it made a copy was placed a logo in the court said no you don't get out of infringement admitted infringement just by placing the logo but that is not what we have here where you have it's a relatively simple two dimensional design interspersed with an ornamental logo the test for determining infringement under design pat law is would an ordinary observer find substantial similarity between the two designs and what is the overall ready visual impression and there's no question at the least the jury should have been able to decide whether or not that that ornamental logo repeated throughout the design was in fact or created some some distinction some dissimilarities in the overall visual impression that the court in addition also disregarded the way was there's a difference between prisoners and referees right and its orientation once vertical ones horizontal we can't say it doesn't make a difference or if the referees line on a side is a prisoner that doesn't make any sense i'll have to think about that