united states court of appeals for the federal circuit is now open and in session god save the united states and this honorable court elsewhere based on the desire for safety mechanism well that that's one thing that the judge to deny and she said that there wasn't a motivation combined because we didn't prove that you know a bridge plate was necessary for a bracket but that's that's really not the right question the right question is whether there'd be a motivation to combine a bridge plate as a safety mechanism in engram and the i counsel this is just more i think one of the problems i have with that argument is it seems to boil down to if certain features safety plates screws ramps things like that were generally known in the art there's automatically a motivation to combine any of that's that's what i feel like your argument boils down to and and that seems like it would be a dramatic expansion of our law well i mean the thing that we're remember about that is that these are commodit and it doesn't matter what safety measure you employ a procedure would have all of those in their quiver so to speak and they could employ any one of them and i think that trial in the joint appendix where one of the witnesses one of the experts says there are multiple known security mechanisms and it would have been obvious and they're all by clear and convincing evidence that the claims would have been obvious to a skilled artisan correct and as part of your burden of proof in the context of a one of three challenge don't you also need to present a reason to combine different elements together as reflected in the claim yes and there was a reason the reason is and well i guess with that's that's my concern my concern is where in the record did you satisfied that element of your burden and one of three challenge to put together and present what is the rationale what is the reason to from those two elements the jury can see that it would be obvious to use any number of those combinations to secure the brackets to the wal so what the evidence the combination of the that evidence showed the jury three things number one that the problem of falling brackets was well known in the art number two that there were a limited time since  prove that a retainer and safety screw were necessary components to a bracket in this regard the court applies the nonstandard because again it's the relevant question is whether the bridge plate security screws are necessary components of every  and what this means and this is why it's important it means that the jury correctly compared the claim to be age fifty two that your case if you see based on the evidence to do so if the jury was somehow irrational or simply didn't understand how to compare whose convincing evidence was rational and correct if i can comment a little bit about the technology the technology here is technology almost a misnomer i mean if it's technology it's it's caveman and it was one of the two brackets that were combined on the us so the entire invalidity came forth by crimson depended upon the admission of the t r k fifty bracket in the evidence that bracket was not in concluding that the reliability factors of eighty seven are sufficiently satisfied by the quite powerful interest of amazon in having these kinds of printouts  listings do accurate and that that was enough for admissibility to rest going to wait yeah i yes i believe that if you come down to whether or not in particular two of the the ability to find other evidence or showing about other evidence was not as trustworthy and right and direct i'm afraid my memory of the many many details here might be inadequate but  remembering correctly or incorrectly that what you point to as a better non hearsay evidence would be to find somebody or other in the amazon company that might actually remember how this one  rule but i just it just to be that's i was taking all of that as a given so you said here's what would be available am i remembering right that where you say is here's an on hearsay evidence in this case that would be available establish this that particular bracket predated the credit so there is different things that they could have done but they didn't do any of them and they didn't explain why they didn't do any of them and they didn't show january two thousand and four do you think that be in good enough to use the printout of that article as its prior art as of that date of two thousand  from washington post dot com york times dot com etc where that web site indicated that it was that article was st published at a certain date it would acquirement of guarantees of trustworthiness either the statement has to be made under oath or corroborated by non hearsay evidence is it your view that th circuit law requires compliance with one of those too  i would say we don't have to go that far your honor we believe that there has to be some evidence beyond the document itself to establish trustworthiness so precisely what the contours of that basic issue which is the idea that somehow because amazon is a well known and because amazon had no motivation here that all of a sudden we can assume that it's trustworthy but i don't think you can do that because we have no allow those rd party vendors to manage and control the particular sites on their website so out of the council for example are you suggesting that it may not even be an amazon that is listing t sort of showing that there's a prior us so they bore us substantial burden on that and frankly i would just printing something off from a website is not enough to do that you've gotta do more you've got to do something that shows that that print off most web site has trustworthiness and you have to do something or to prove that just looking at the document itself and then secondly you have to show why you couldn't have done it through more from various jurisdictions around the country various restrictive covenants that were more broad than the common and if you know in this particular case this is just trying to can i can i just ask a question about what's at stake possibly violated or they allegedly violated provision of the contract was the one year post terminations do not sell something thus the terminations was december of two thousand and nine the sales from sycamore to crimson started in july of two thousand and ten you all knew about it thought it was no big deal until sometime in twenty levon after which or as of which that restrictive provision had itself lapsed because more than one year had passed since december two thousand and nine so are we talking about five months of sales from july two thousand and ten to december twenty t amazon dot com isn't just any retailer and it's the largest retailer in the country and they're not in the business or evidence in the record of that there is not judge so what you're asking me to take judicial notice of the fact that amazon is the largest retailer in the country i think it's if it's not the largest it's in the photo i think it's so i should take notice judicial notice of some team photo no your honor i didn't mean to be flip about it but i think it well known that you're basically trying to testify right now to things you didn't put into evidence below you're trying to offer me your personal testimony unsupported by anything in the record i think it's common knowledge that amazon dot com is a large  one of the largest retailers in the country if you argue that bill though we did not argue with below but the court now you're making arguments on appeal regarding this that asks me to assume or take judicial notice of evidence not in the record and arguments not made the law what evidence did you present as to the trustworthiness of the representations on the website well we presented it  to the court and the court found that amazon dot com did not have any motivation to lie about the date that it published and as for mr das argument well the washington post have any reason to lie about the date they published it doesn't it's not about lying right it's trustworthiness doesn't just mean lying because lying implies some intentionality it could be carelessness right or it could be perhaps amazon allows the individual vendors to list the date st sold perhaps amazon's not even in control of that data and then you could imagine circumstances where there are wild variations in the accuracy of the data being presented if amazon were to allow each individual seller to list and to fill that particular data field and i think i think that's the the problem here that i see well i would draw a distinction between the washington post and amazon dot com i mean it depends on what  i know that i'm out of time and so well i guess i just am wondering i'm i'm just not don't worry about your time i'm i'm just i'm not sure about this argument thing that carries the day under eight hundred and seven so perhaps there isn't a th circuit case that says something like this can never be enough but i can't find any th circuit case that has held something like this is enough under which this particular web site was named you know and i i that's fine and will and argument but i just want to say before we conclude this particular hearing today appropriate and it is not the way that you should be arguing appeals it's it's just flat out inappropriate so please be aware of that and try in the future to do a better job of forthrightly