please the court on behalf of g m s my name's james lawrence your honour's design patent protection does not provide monopoly rights and design concepts conceptual similarities between patent a device and an accused product are insufficient to provide a basis for infringement this court has a long line of precedent protecting against the over extension of design patents this court as recently as its two thousand and sixteen sport dimension decision instructed the district court must take into account claim construction twelve void these kinds of problems one of the concerns i have about the argument you're making right now is that that's true our case law does say that but i don't see where you've peeled the design patents in your case well your honor in order to analyze whether or not the jury verdict here is supported by the record the initial step that this court would have to engage in t functionality and there was a marking here and even in this case and a proposed construction of the design patent that took into account this court's teaching and support dimension where is it raised in the subsection c pages fourteen through eighteen where the the construction or it or an attempt is made to describe what the six eight four pat covers and how that how about has to be considered in light of the very functional aspects that are at issue in the claim design here so it's i understand you to be saying to page sixteen through seventeen where there is a discussion of the functionality issues which inform the court's construction of the g m s meeting should have informed  as i as i mentioned your honor claim construction consistent with the support the mentioned decision and other cases approach about this court were not was not done in this case at that's three twenty three  district court after having in front of it a claim construction that took into account support dimension simply made a very brief order where it sent the  m construction eventually got to the jury that simply incorporated the claim on the face of the patent and directed the jury's attention to the to the figures and as a result the jury in this case returned a verdict of infringement against g amassed a verdict that was based on similarities and concepts and also similarities similarities that were functional and prior art as well i'd like to raise three points in support of g m s position your honour's that what is appropriate here is the finding of no infringement as a matter of law first is that the scope of the sixty four patent narrow second is that when this claim when this patents properly understood be construed there are significant striking visual just visual dissimilarities from every perspective third is that the products of issue in this case are not impulse purchases these are expensive pieces of equipment that are purchased by employees and coal mines tasked with belabor the point in the brief because we spend a significant amount of time in the opening briefing talking about what is claimed here and what is claimed here is quite a bit any solid lines are essentially every feature on the face of the patent alone that choice suggests that limited scope in this case further when the court takes into account consistent with support dimension which commands district courts to engage in a functionality analysis the the the items that are claims are highly functional the fifty five gallon  is the way the product looks is it essential to perform the function test well i mean the can you need a container of course what is the container have to look like this particular con other functional aspect of the allows for for rolling we would also point out that in support dimension functionality was taken into account and it was part of the playing construction analysis even though theoretically there will be alternative ways to design the arm bands that were at issue in that personal flotation case so we would maintain that it's still even if there were alternative ways this is to design the product and issue that that claim construction functionality is still an issue and it's an issue that wasn't addressed that the district court level and once the claim construction was entered in the jury was instructed they focus on the jury that is focused on conceptual similarities and and functional aspects of the design that ultimately led to the verdicts and you present evidence  considerations weren't present in the jury one issue there your honor was that half so i believe worked very hard to prevent any discussion of the functional lack specs of the design i think there were objections within the opening statement when trial counsel attempted to talk about what we talk about in the record which is at f x five ninety mr four notchy in the origins of the design the vacuum cleaner that  functional aspects of the patents claim that all present any evidence of what you're talking about today well your honor i it's hard i don't i don't know what was to mention ethicon and other cases were there to be going to the district court didn't take the opportunity to reach out and provide a construction to be consistent with this court's precedent  that's subject to a plain error standard or for a view it's not something we maintain was was preserved at the trial court level was there any attempt to introduce her to the jury and talk to them about the role of or the engineer perhaps but the design of the product in which he admitted they said this is a standard type drum to which were attached certain devices perforation but it was never stated that it these fifty five gallon appellant here attempts to argue that the jury verdict must be set aside because the instructions were improper the jury was properly instructed it was not instructed in prior art because prior it was not the case the case law in this circuit and that if it is clear that the burden of producing prior art is on the person challenging the patent they did not produce a shred of evidence at trial and i tried the case at or disclose the patent on a fifty five gallon that was issued believe in two thousand and twelve the jury had the patent but they didn't know what those particular prior art references were there was no an effort to bring them in there was no effort to present any evidence at all and be had g m s let alone evidence by experts or anyone else as to whether prior art was embodied in the halftone venture they had the opportunity to seek claim construction they asked for a marker in here even though we know under egyptian goddess and later precedent that's if it's not frowned upon at least as discouraged in the case of a design baton after hearing at which they presented no evidence on their proposed claim construction judge favorite denied it he said he was defining the patent as per the drawings in the patent itself and that was his claim construction at the same time they moved for declaration of invalidity and he denied that also the case went to tr was tried to the jury we presented evidence we presented one of their witnesses adversely on the rest of our case and after that g m s move for a directed verdict the judge denied the directed verdict and he said clearly that he thought there was sufficient material substantial evidence that would allow a jury to find before the planet that it was going to allow to go to the jury there was no motion for summary judgment on the issue of functionality that's been discussed the issue of invalidity instead the case went to the jury on the instructions that were tendered and accepted by the court there was no instruction referencing priority for me so i was there any  design the patent protection the unitary design and the have to look at the design as a whole the jury saw all the evidence heard the credibility of the witnesses reviewed that evidence and within two hours came back and found infringement and willful infringement now the issue is not whether they both have a stand and whether the two stands in the same the issue is to an ordinary observer and law is clear and i have the case here when he decided that a jury is comprised of ordinary observers that the design of their product it was disturbingly or similar to substantially similar to under the test to our patent and it would confuse an ordinary observer to the extent that the ordinary observer might purchase their product thinking it was ours now judge faber saw that there was sufficient evidence to go to the jury the jury reviewed the evidence the jury found for the planet and what g m s now seeks to do is case phillips and a disgrace case we have a rule that we must provide deference to factual findings with a trial judge we can't lightly turn those aside because we may disagree in our view of what the facts may have shown if the court has made these findings seen the evidence hearing the witnesses we should be very reluctant to overturn the court at that point particularly in this case where you've been through the martin hearing the martin process you've been through the directed verdict motion you've been through the cylinders had rips if they had a functional functional aspect it doesn't matter case law is clear that you could have something that has a function but still be part of the overall design the questions what did it look like not what did it do and in our case we submit to you that the fifty five gallon drum is not essential in fact there was testimony from the same witness mr for notching who said basically you need a and mr helbeck the g m s officer we call that bursley and mr hell being said they had even made one using a smaller container you don't have to use a fifty five gallon drum the fifty five gallon drum is claimed in the for o utility that we didn't sue in the for one utility that we sued instead on the design that our claim is that their product as a whole looks like our product deceptively and meets the standard to allow us to claim we made a decision among council we were not we didn't prosecute that made a decision with the prosecutor that that we should not proceed under the utility that because it didn't factor involved fifty five gallon drum and the fifty five gallon drum was by that time prior one before your honor i i mean in order to preserve clean history suppose you need to stick to writing i've i don't know if we would have two sticks of the to the verbal descriptions provided at one sixty four one sixty four g m s as we maintained that there was no consideration given at all to the functional aspects of the look of the device yes that's kind of one sixty four that that's correct your honor is that addressed in your brief and i feel the particular construction that's proposed there is no and again to my colleagues to address my colleagues point even even under egyptian goddess five forty three f third six eighty under that case which was cited i believe in two must must engage in an identification of the nonfunctional elements of a design as part of the can claim construction process where there are functional and non functional aspects of a verdicts and find no infringement as a matter of law in this case and any alternative for the man's the case back the district court for a claim construction that takes into account th