about accused to design a one step of three zero zero three seven and then we that case was pending by the way we're talking about the same private case because even though these two cases are two different district court found that they were not substantially similar as a matter of law yes so the reason why these private case is important is that it's place access and if that even becomes a direct evidence of showing bottom layer in the force of file so even without that to because of this prior case pending they knew about this design being disputed for copyright infringement but they modified it subsequently in the middle of a case and they to do with the question of whether the designs were substantially similar is amount right it's a liberty for the other so one one line you're talking about similarity and the other line you're talking about access that when the defendant disputes copying the sure role comes into play but i haven't seen any case that says the inverse ratio rule is relevant when the issue is whether the designs are substantially similar and as i similarity prying that even if you can show access are you still have to show the same degree of substantial similarity i hear what you say your so showing copying have to three different ways  the way even for substantial similarities you we have a very strong showing of access so you know that this record was saying i see lower level of similarity and then they say that should have been analyzed in the whole impression that they never did that in this particular case is that right i think that this record was kind of mixing them up so as a whole i think generally speaking they don't really look similar that's the i think the beginning of the day before they said they didn't apply the intrinsic test right so i'm just wondering what your remedy is your remedy if they haven't applied the intrinsic test is to send it back to the district court and suggest that the extrinsic test is satisfied but that you also have to apply that second intrinsic test that is that what you're asking for so you know i'm asking for a determination as it should go to a jury you're asking for do be sent back so the district court would apply the intrinsic test as well as the expensive test is that right generally it is  already you know there are a lot of side by side comparisons we presented in the case you want to see we are not talking about i am and you know it is about like it's like a cloud but that there are not even clubs like let's say our design here and the accused parent here and this example is coming from an expert report is out there they're not even close so they cannot say this is one of those  fully in the district court's decision because the district court says specifically that the court finds as a matter of law that you cues design in this subject design or substantially discussing that the fact that district court judges shouldn't be sitting in their chambers deciding why they're infringing works are substantially similar not that those are questions for the jury however perhaps non detailed for what the district court was looking at and determining that as extrinsically there was no similarity it's not as if he used a broad brush phrase and then said that and this when you know i mean i'm not quite sure that's what we're supposed to be doing agreed your honor and one of the problems that this court had and perhaps the key district court had is is that there is no  it if there's a kind of a flip flop here because the district court did in fact make an observation that there is some similarity between the diamonds so it's not as they have the district court just  you're saying that when the district court starts out this paragraph was shown on the side by side comparison the subject is on is far more abstract and intricate than the accused this time that he's looking at the differences similar but again i stress is that these are and counsel you see the name the john underwent his killam these are killing designs and well the court has its own copies this and the cell meant that then when step together with burlington modified it as in an effort to make it non infringing we had a similar case earlier this week and so that does so it's a question is whether that modification was sufficient to differentiate the then fabric because no  amount of access is going to make stuff similar if it's not right also questionable whether that is because i do believe that is counsel's argument and there's no factual basis in the record for this plot between burlington and one step up there may be a temporal connect between the various events but there's never been any evidence of people sitting in a room one w some extent i did this particular fabric and there are trends in the fashion industry and at this particular point in time this was the trend and there was lots and lots of the stuff out there