provability i represent the appellant you're fishing and this appeals about proper deference to a jury on issues of fact on each issue in which the district court found summary judgment the and obviousness there were disputes genuine disputes of material fact which should have gone to a jury prior to the final legal conclusion on these affirmative defenses we have apple we rip off bore the burden of proof by clear and convincing evidence is as this court knows a period of time an invention is developed is often of were time that you're fishing to most of the lab roger cook and his supervisor at that point and foot began heating so from that standpoint it was just heating but the idea was the properties changed it became stiffer and if you look at mr foote slab who was in charge at that point of the project he says on page six zero eight of the record increase tenacity without regard to the parameters owners of the parameter stated within the well what was this invention it's freshly within particular parameters yes within the parameters of one thirty to one about one thirty two about one fifty and the total draw a ratio of something greater than one to about two thereby decreasing the near and increasing the tenacity of law so what's the evidence that he invented that before hearing from the s m sort of foot well number one mr foote says before meeting with allied signal in august of one nine hundred ninety four let's not tell them the work we've been doing with raids allied signal them says during the course of their meeting here's a sample of a stretch president don't talk about its characteristics or what we've done prior to the meeting with the as a pure fishing sends allied signal a spool of guerrilla braid unstretch and says he trench this for us and tell us what happens and we'll measure it first and we'll measure it again we get it back and what you see at that point is is there a decrease in the near and increase tenacity and some fusing because allied signal stretches it at two point one outside the parameters of the invention and a hundred fifty five degrees also outside parameters so clearly pure fishing has been working on thinking about with that after that that that he got those parameters from d s s but your honor if you look at how that evolved first of all you folks as we were doing that work beforehand and he was a supervisor for he said that consistently doing work on this prior to my time where does he say that the parameters or arrived at before the information from the s he doesn't use the work was being done prior to the meeting with the s m and prior to the meeting with  or he testifies we had no writing machines we had no brains we had no reason to independently work with brains anything we did with the braves because our customer potential customer pure fishing asked us twenty one thirty seven zero one here pure fishing has asked that supplier assist us we have an idea we're thinking about it what would be the conditions you would use as a yarn manufacturer those conditions were supplied at that point mr cook goes in the lamb and that invention is not complete he begins his work in october ninety four he does hundreds of experiments before april of ninety five when finally the fire line the fuse line is actually able to be put into production shortly thereafter and then then fuse comes into production later some years later the most recent case dealing with that section of the anticipation is also a question of fact the fire line products have a choose step drawl that's required to get to the fire line invention was one of them was that in the claims yes if the first step of drawing is within the same they are not here for the intermediate step to be anticipating it would have to be something that is taught to the public and understood by the public to stand alone there's nothing in the fire line process by saying yes but in this case that intermediate step was independent and you could tell from the patent that it stopped and you could look at it and be taught what the intermediate step did that's not what happens and vir fire line it's a first step of a two stage process to get to a result if used or semi fused line and that result was shown force in live specifications of the fire line patent fifty five sixty one of the record but when you look at the two fourteen that there is a clear limitation the very last line doesn't say one step  step it's teaching is not to stop there is to keep proceeding in the fire line product there is nothing in the fire on patents or the process itself that would tell the practitioner you can stop right here and you get a different product you get a different result and that's the distinction plus you're under the clear language of claim one of the two fourteen requires that the total troll ratio occur in the one thirty to step is permissible in if you are dealing with infringement rather than in validity certainly be arguing that the fire line product infringement would infringe even though they went on and performed another step which was outside of the parameters of the claims wouldn't you i don't believe so your honor in specific this client viewed both those inventions and as somebody could avoid infringement just by adding another step not necessarily around or in this process case yes the typical but in the process case where it's not obvious or not talk to the public that other result is there then no producing a fuse line after heating in a second step would not unfriends to  above table eleven and twelve the only set of examples where this is said in the entire patent that the line of examples twenty eight or forty one were stretched under the conditions of the invention the other examples do not say that because it results under fused braided fishing line and that's the key difference between the fire line process and the two fourteen process they result in two different products anticipation falls so does that the district court also only gave one line consideration to secondary factors which is required to consider under john deere j s r for example secondary evidence is unimportant ma'am please court i represent the norm or corporation which is known as wrap around the same brand name let me start with judge think first question what's the contrary evidence of derivation here and that was really the key issue throughout the entire case there were five of the spirited facts that were laid out in our briefing that mr cook testified that his conception it was october fifth one thousand nine hundred four that was the first day he ever did work on this that deposition and at the inequitable conduct trial this invention using heat stretching to increase the tenacity of a braided fishing line in these primers was not my idea it came from d s m it came from l i single it came from someone else other than me not my idea and he was adamant about that he was directly challenged at the inec will conduct a trial are you mr cooke claiming an earlier conception date and he said no photography at nine hundred ninety four is my conception now what we have what's the contrary evidence after all that evidence was presented what you're fishing did was try to my main one thousand nine hundred three as an earlier conception date despite all of that evidence from mr cook's notebook from your fishing the claims require stretching and a positive draw ratio which is defined in the past as the output roller have to be going faster than the input roll that's in the definition so to have stretching you must stretch the material at this positive draw ratio that was not what mr cooke was doing he testified that he was not stretching that he was doing something called he said in keeping the all elements in the prior art that you've anticipated the claims and and therefore the fact that everyone is in agreement that stage one of the fire lines is process matches claims one four and five that invalidates the pa that's just my understanding of the case why haven't seen cited to me or found one my own contrary case law that would say in a process setting somehow it's different the other thing that i would really like to emphasize on the fire line issue is the distinction that mr manners continues to attempt to make between fire line process and the two one for pat is just simply not correct the two or pattern is not limited to an n fused fishing line that there is no plane term in the patent claims that would allow the court to read that limitation in into the claims and and judge curry was correct in not doing so it would require misreading the specification and then reading the limitation into the claims and judge her is also correct in looking at the firelight patterns and what they say and that really gives the answer you'll notice in their reply brief they don't address the fuse on fuse line and a hundred forty eight and one hundred fifty two degrees using mineral oil you will result in a well fused line that is the fire line examples that's the teaching of the fire line patterns and the fairly patterns also say that the that's exactly the conditions that resulted in well fuse line in the fire line path so this distinction is making that these processes are somehow different is just not supported by anything in the intrinsic record when you're trying to do a claim construction here for the final point would be this claim construction was made up only in response to the fire line in other words during the high construction process they wanted to construe the claims of one hundred fifty nine degrees which everyone agrees would cause c using so they changed their view of what the path so so that's that let me let me if i could get back to the derivation point and just finish up my thoughts on that so mr cooke himself his own testimon stablish that he did not have a complete an operative idea of the invention in may of one thousand nine hundred three because he was doing something different there is no stretching there is no evidence of increase of tenacity in that work in may of hundred three this is a digression a little bit but i think it's an important one in their reply brief i think it's on page seventeen and i was on page two they say well there was an increase in tenacity just wasn't recognized the time and they cite to the record to the patent lawyers testimony twenty years later it's just not correct it's not right there was no evidence in the homes documents or in the testimony m no no that's right your honor i mean it's a hypothetical if he had limited his claims to a very high drawer ratio and explain some benefit from that in the patent itself would he have been able to get an invention we don't know but that's not that's right and that's that's all he ever ever claimed in his in his so you're saying he conceded that he wasn't the inventor of claim one over and over again your honor over and over again that's right so that's really what i have on derivation and on the fire wine list the court has has more questions and just briefly on obviousness this is really of a piece with the first two arguments in that the entire obviousness argument is resting on undisputed facts so it's a classic application of of k s r by the district court to undisputed facts and undisputed fact number one is that example seven of dunbar patent is the two one for process it's identical to it if you just keep stretching of the braid a line at the same temperatures and at the same draw ratios the only difference between example seven and the two one for claims is that the yarns the individual yarns that make up the braid are eleven ninety then here which is a measure of thickness rather than about one thousand and ten that was the only difference that difference was supplied to the person of ordinary skill in the art with omniscient knowledge of the art by fire because fire min has much smaller than yours and used heat stretching is also supplied on the very same page of dunbar example seven because there are samples one has smaller than your yarns and everyone agrees again their expert testified that if you sample one of dunbar instead of sample five you've now performed the two one for invention so the idea is that the person of ordinary skill wouldn't be so dense that they couldn't make the invention having all that in front of that really was not those  the undisputed facts that led to it the other undisputed fact never contested not in the briefing ever contested well is that mr cohen and mr van gore both testified  gore went on it quite some length with graphs and everything to explain that if you have a great headline of g s t and you stretch it under heat you're going to get this mechanical strengthening this mechanical increase in tenacity just by pulling the braids tighter and evening out those evening out those yards and he said that was a known and expected result in light of hogan and in light of ryan was very clear about that the big distinction that you make on obviousness is to say well the two one for deals with fishing line which is somehow smaller than done well that's not correct because two of four claims are sixty forty ar you're that's the scope of the claim that's much larger than our but in any event there are witnesses coped invent gore both testified you know what it's easier to stretch a fishing line we know once we know how to stretch a rope to increase tenacity we know that we're going to get increase of tenacity with fishing line it's easier to do fishing line because of the heat transfer issues because it's small it's just easier to do that so the obviousness decision was a simple looking first of into is a patient the limitation can be read from the description under honeywell where there is a clear limitation to one would understand who is skilled in the art stated in terms definiteness which it is there it's not the number of times it's mentioned it's not mentioned as a preferred embodiment as one of several opportunities as one of several results it is said that line according to the invention will remain opaque white color of the director of research testified we had no reason to stretch a grade unless our customer wanted us to we had no graded material in our own factory we don't do that we don't have grading machines so they got a grade they got it from here fishing they get it for a visit by pure fishing and they discussed it with your fishing for a lot of companies in this world using your suppliers resources knowledge to help you with an idea is normal if there was any belief that d s m was the inventor your honor there was actually no reason not to list someone from d s m as an inventor these companies had as the record shows an agreement between them that any inventions done jointly between to having a co inventor on that patent or frankly even just a d s m inventor under the way their agreement was written it's because the parties believe roger cook six are for fishing believe the car roger cook's experimentation did we were requested to do this by a customer of the only reason we would do it plus mr foote testimony which is consistent that he believed roger cook was doing these experiments cook says oh there was no question about that but that is i can testify that mr foote has been very consistent prior litigation in writing both in october of ninety four in july ninety six and saying roger cook was working on this before he went to l there are two pages one appears at the end of the record because it's been added for mr footstep position where he talks about what was being he trashed prior to the meeting with allied signal and in the first page he talks about that fact ronnie talks about nylon in the second page which is i believe and i may have the number wrong apologize for my notes not here i think it's twenty three eighty eight he says no we were he trenching g s p before we went to those meetings that he does not say the parameters but he does say they were  there is nothing in the dunbar canadian pat that suggests the feed yarn from sample one should be switched to a sample five when performing example seven so that you can get within the scope of the two fourteen that there's nothing in his teaching that suggests that there's no motivation that suggests there's nothing in the record i believe the examiners finding that this was not an obvious invention in light of the prior art was the correct one and should have carried some weight at the district court without the