it's good to see someone from another bench here and i trust that they briefed you about the weather before you came here so you were prepared from not being in northern california and i want to it's also a privilege for me to be here this is the second time that i've been able to argue before this court in the last two months and it's a privilege also because it's my first argument and i second argue before this court it's something that is i feel it's quite a privilege but it made me think about going back to law school what we learned was school on the excitement of law the argument she was very good when it comes to the issue of privilege we were when we become members of the court we're privileged to be officers of that court one when i talk about trust there are certain documents that are used in our process in which we're supposed to be able to trust the statements made in those eyes so i put myself in the position of my previous counsel in this case that the district court level and he was faced with a motion for summary judgment in which one of the issues was the date of invention  in preparing for his response to the motion for summary judge i'm sure he had discussions with his client and in those discussions the client well you know i i actually invented that earlier i have an earlier date of adventure and then the counsel both thought well you know here here i have the privilege to be an officer of the corps and i have i have the trust of my client and my client makes a statement of the date of invention in response to a motion for summary judgment that i should be invention was simply of a single conclusory statement that i and that it reduced to practice examined and tested my invention described in clay made and confirmed that it had the properties that the statement was made by the inventor it was a it was a statement of fact it would you know what are precedent this with respect to establishing dates of invention and really clear consistent about the necessity to have corroboration and if if that wasn't enough i'm sure you prescience that statements that are simply conclusory statements are very often not given have effect and here there is nothing no know nothing about how when or why not the question for me when i was thinking about this is needed that the summary judgment stage answer enough to create a genuine issue of material fact and i the inventor statement well short of that test well it would raise an issue about the the invention day and there was no dispute when i was thinking about that question you would ask me like that i was thinking i started thinking about what the what the value of having an individual sign a document and swear to it under penalty of perjury and i was thinking about that in the in the same context of a motion for summary judgment and what the purpose of the summary judgment process is and i think and  case law is not clear on this when you have a motion for summary judgment and well they have the facts that we have in this case the inventor's statement under oath is not enough to create a genuine issue material fact that can then be just can then be explored a trauma room do we trust our inventors or not we trust people that sign sign the you know the declarations are not was a decision made to rely on the inventor statement and why of any pinions that would indicate that that was not enough in these facts so if the if that statement is enough in this case then magistrate king crab truck should have given it more weight and magistrate crab trucks opinion she she'll lose it to the standard and she clearly knew what the standard was and then for some reason when it came to this statement it was disregarded without too much discussion  i can think of situations that i've had in my practice in would i have a client an inventor or inventors who have told me what the date of invention was and we always believe our clients and the question comes in those situations is do we have anything else other than that i don't think it was an error in your responding as motion for summary judgment for the attorney to say those this panel just eluded to the the critical date for purposes of of invalidity there under anticipation obviousness is under one hundred two years one year prior to the filing date of the patent i prove an earlier invention date not just an invention date but here an invention of the duction is practiced today because that's what's been claimed not invention diligence so as a result under one o t to be which brings us to the hermit reference herman is prior are as it was filed on may twenty one thousand nine hundred ninety six now the herman reference discloses each and every limitation of claim eight of the eight ten for purposes of this appeal based the plaintiff acknowledges that the three layers of the liner are disclosed and herman and takes exception with whether or not of the herman patent covers a layer for contact with said moisture in or a column sixteen line fourteen a cover layer in a cover layer in herman is defined as the layer closest to the skin so here the foot so transportation which is another requirement of claim eight and then when we go down to the third layer there's also disclosed disclosed in the claims that's claimed eight in column sixteen where in addition to the layer the mortar transfer layer next to the foot of the breathable foam wire now claim eight teaches that this composite material claim one the moisture transfer layer and the phone wire also has a third layer which is a non tiriel that's bonded to the second side remote from the cover where so that's exactly what we're looking at when we're looking at claim eight of the patent issues here the a ten patent in a moisture transfer layer breathable foam lair and then the third woven i just want to touch on it while we're here with the claims one of the arguments that was made by plaintiffs in the brief was that the not one layer had to be not readable not not breathable because it had to be thermal form or it was a material but claim it clearly says that any type of woman falls within the claims here two not challenging the claim construction initially made by judge single and and sort of adopted for these proceedings is that you said correct you not challenging that claim construction object of plaintiff's invention clearly that the whole purpose of the invention was taught is to come up with a composite layer that can be used in in shoes or other devices to move move more sure away from the foot so i think we would lose that argument and that's why we didn't challenge it but let's look at herman on that point because herman clearly discloses plainly discloses that moisture vapor needs to move through the layers of the composite away from the for for either expressly or or inherently and let's walk the walk through it seems to me as it is describes throughout that it's not only but that that's a temporary what herman teaches is that that's temporary it moves a user's absorbance into the foam to help all the moisture away from the foot through that layer next to the foot where it's temporarily stored and it dissipated and it only has uses and dissipated along lines let's just look for example at the summer an object of the invention column to it a eight fifty five where it says the present invention covers a which absorbs adsorbed comma gels and stores such body fluids and other and other more sure contact with the cover where it is dissipated from the composite material and throughout this specification you jump down to line thirty three thirty two thirty three and the other in the other moisture absorbed adds or comma gel that were stored and dissipated so it's it's the moisture is abs let's pick up at lines six composite material x to drop or transfer or more secure a body fluids from and through the cover layer a weapon which is closest to the foot into the foam lair which acts as a reservoir to absorb gel or store and dissipate such moisture bodily fluid as evaporation from or about washing of the composite material after the moisture body fluid is dissipated from time to time the composite material can be reused and it i mean come on this is this is this is common sense any of us reading this knows that you're not going to have a close system you don't want your foot to  somewhere that's what we don't have plastic shoes on that's why the clothes that we wear the breathable to someone up to some level are not and what's interesting about claim eight in the eight ten patent is it doesn't have an order of magnitude of breathability where you that lair satisfies satisfies the limitation and and herman expressly teaches that the the more secure can't be a close system the way they argue they're saying the moisture can't come out of the  column one of herman not that it a five five at the bottom let's pick up it at line sixty one the composite material so formed achieves advantageous results for example as an insul increases comfort for the user split by removing perp generated by the foot in the shoe and b by leaving the upper service surface of the insulter dry to the touch and moving on to the top of column two it by creating relatively cooler surface temperatures due to the removal of the moisture from the upper surface of the insult closest to the foot so the moisture can't go back it's got to go somewhere it's dissipating right teaches dissipation and it also the teaching is not dissipating back towards the foot that makes no sense and that's not here and also a column six on the same point it teaches not re wetting the cover layer which is the layer closest to the foot column six let's pick it up re wet the cover top layer of the composite so it has to go it has to go somewhere so either either inherently it either is or expressly or at least inherently breathability as it is necessarily present in this patent the moisture has got to go somewhere and it doesn't go back towards the foot so it has to leave out through the composite materials tells us that the non woven is also a permeable to water vapor one it states that the not one has to take on the same characteristics of the foam layer and the rest of the composite which requires actually bringing more secure vapor into it and that is it calm eight twenty nine through thirty wan it should be noted that the nonmoving material may also be introduced as a component of the poly your three and here we're talking about the not woman and it establishes this using the mixture that's taught here on on how to make the foam not woven composite establishes that woods or interstitial spaces between the fibers in the nano and fibers are felt that non woven fiber materials are used goes on to come twelve to talk about doing that will increase the extent of the voids or interstitial spaces in the fibers and then it also directs system to diagrams which twenty two are the interstitial spaces between the fibers of the non will win thirty two as the non woven material so there's spaces in between the non woven material that are taught and twenty now if for some reason this court determines that the breathability a limitation of herman is not expressly or inherently disclosed but plainly it would be obvious here for a person skilled that there's nothing really invented here it's a pure combination of known materials if we look at herman who are like you rich i was required thank you sake of this argument i'll say pretend for a second that the three individual years and herman are found in the eight ten it still doesn't matter because herman teaches storage and dissipation moister travels to the phone number through the phone certain time may just talks about whether the cut the structure or the cited is present and whether it is breathable composite no i agree wholeheartedly and that's why judge single claims traction is supported because the water vapor has to transfer through the liner as opposed to being stored dissipated it is a serious difference whether it it's stored in the line court for the first time on appeal which is what we're dealing with now obviously there's no judgment below to look at this court's going to be reviewing affidavits and individual pieces of evidence which as we've set out in our brief in the limited space we've had because it was this was a goo addition when there are so many issues feel we set out that we don't believe that these affiance are reliable are all interested parties all of them are tied to the same company that has a direct interest in this case and each these are all things that this court would have to review for the first time the appeal and we don't see any reason to do that here now for the first time and really briefly we also mention in our brief that the zero point zero three product is not at this magistrate judge did rule correctly on that point the only evidence that was presented in support of that anticipation argument was an affidavit by a interested party and it was not sufficiently corroborated and there was no way for the court to know truly what that material was and how it existed prior to the finally that of my client's pen there's also the issue as to whether or not the material is changed from its original