two items one of sort of a progression of the technology and how the patents fit into that scheme that might put things into perspective here and second of all the technical reason why this subset and reference features mean we were to agree with you about the one sixty eight path but disagree about the one hundred seven would make any difference any difference in what respect in the result here  would agree with that let me address that point real quickly but let's assume you agree with me that the one sixty eight at an initial position marks mean something different from the regular registration  let's look at reference features i read that claim again read all the claims it talks about a sheet having a combination of registration marks and graphic images and that combination of registration marks and images are in pre determined positions relative to a reference feature that's what the claim reads if you say that registration marks and reference we jews are the same cross out the words reference future and subject to registration marks and then read that claim to become circular nonsensical the reference for you just gotta be something other than where it is ration marks and i think it's got to be something different when you look at the progression the technology and i are talking about well what about the one the seven path in which strikes me as a problem for you and particularly in column five were  as you know the graphic feature i mean you're talking about you have a sheet that has multiple graphics on if they want to read a portion of the graphic and that now becomes their initial position mark or if you want to equate that that's fine as long as it's just a regular ordinary registration or a regular ordinary registration marchers another way to look at it the basic technology had sheets with multiple images and multiple registration mark prior art is all about look at you know the registration works how does this if if now all we're looking at is regular registration act i was that different than what the prior art because that's not explained and wasn't a different question but isn't the language of the one eighty seven specification and independent claims suggest that you're using these graphic images using the graphic images is fine as a reference for each i'm saying that the reference features and registration mark sixty eight some special marks initial positioning marks yes and when i read the one eighty seven patent first of all i don't see any special marks in the figures correct and then i lead palm five in the dependent claims and they seem to say specifically that for a positioning you're relying on these graphic images relying on what t did that in your brief in that you said oh well it doesn't talk about using a set of graphics i've misreading your brief the graphic images are different from the registration works just not there let me ask you this the court said having become more familiar with the technology during the course of considering the present motions you took on bridget that on precisely the form of evidence is prohibited aside what's your basis in the in the record or support for this assertion the court says i mean become more familiar there in the course of consideration evidence that you know so for me i had to do that's the other thing that we want that i can change its mind even even if he doesn't consider anything that i don't dispute that you can that you can do that but you know i have two problems with it one is we one hundred eighty degrees and claim construction and then not allow us the opportunity to do challenges what is the i think is just not quite right but also just strictly procedurally you know there was not a motion for summary judgment of graphics thing was priority and that didn't change based on the client instruction well two things about that first of all i we had some information about the summer graphics raising that a trial that says i don't have enough evidence for summary judgment but i might have enough i was wrong did you offer a trial that was rejected on this i now have a machine we we got to think we got three things we have located a sim a graphics machine that was sold in the united states as prior art we have documentation effect ion i'll have a witness or that it was on sale or in public use and then well that's that's that's the machine we're talking about and i've got a witness you say but who's what where in the records as a child i've got a witness to the gentleman was a video that was presented to the district court and i and we've got not only the declarations but also the documents showing that the machine was small and in use in the united states up at a company called cas thank you your honor morning we'd like to reserve five minutes if we need further rebuttal and i'd like to just briefly start by saying a little bit about the technology as well the do you agree  that it doesn't make any difference what we do about the one sixty eight patent if we conclude with the one eighty seven is infringed we believe the old patents are infringed or that if and if the if there is a decision about sixty eight and there is a difference in one sixty eight and one eighty seven on one point and that is that in one sixty eight patent in describing the registration marks it it indicates that there are no more than one side of a graphics ok that limitation is not in the one eighty seven right and so it might depend on the details of the decision about but that would seem to indicate that the one sixty eight at least with respect to then so when you don't find them if you're doing a long run or even a short run it shuts down the automatic cutting operations shut down if those marks aren't in the expected location  art and up so by the way it's not just cutting but it's really cutting it's also narrow path processing which is another a broader term used in some of the claims but so that is what we think that the broadening aspect when you say it's a reference feature yes but the claim language is a graphics feature is a reference a registration mark a graphics feature cause and the reason is what the reason is because it is printed and therefore it's on a graphic sheet and anything printed on a graphic she does graphics and if it has metrics which can be used as even though it has metrics even though it has metro so it won eighty seven patent expanded the idea what you can eat what you can look for to determine the position orientation of the sheet and therefore know the approximate positions of the registration marks that you would go forward to using could you could you moving if we could get to the question of the submission that we were talking about with your opposing submission and the district court ultimate disposition of the motion that contains this material my understanding is that this record entered summary judgment and then this material submitted and i guess march of two thousand and twelve that correct that's what's marked on the that's correct or tutus are nearly a year after the summary judgment to see and the district court and along with a motion for the district court to to reopen in effect a summ which was denied when did they put in this additional material with the in women a motion they say in both cases there was nothing authenticated and in both cases there was discussion of what they would like to show  about in denying the unlimited a motion like the court i'm sorry no i'm trying to figure what the court said that they had i can't remember the exact quote it's in our brief i believe your honor but it looks yes it was only dealt with on june eleventh two thousand and two we have that in the appendix the material they put in did raise a genuine issue of material facts about the it did not rain wind down because it was an obscenity that statements including statements find the co inventor who went to work for the other side and has been throughout including during the development work of the of the infringements on the syndicate there was no showing up anything that represented something of this  was there a statement that there was park they submitted some material in connection with these on the way prior art submitted that there was a concern to us it was an effort to i've the question your honor whether it's of concern to you the question is did they submit prior or it is there's nothing here that sense anything that would concern anything the question is what did this control system do and and country what are posing counsel said  this invoice relates to that machine prior art but also about the opossum system and give a two thousand and nine did e o which was shown biased by evidence submitted to be from a system of revision that was launched in two thousand and four well at the priority  you had the chance you shot your ward and you come in now to try to avoid a trial with something that is so poorly set forth the judge did not abuse is discretion and that's standard here there was a lot of argument by invalidity and it wasn't construction and the claim construction found by the court its that's that they attacked the us wanted to attack it again later there they did not attack they did not based their arguments on the prior thing construction they pray based on what we were arguing which we saw was a natural progression and from the from the court of its original constructions of court i did say that mark's don't have to differ in appearance and in its initial ruling and very thoroughly on the construction of the courts finally adopted or maybe made final decision on time struction in the summary judgment decision decision so they would be arguing the same thing they argue before and that's very very clear they argued for invalidity based on other plain construction we argued for and that the court found it some are just not based on some earlier on the on the earlier was fully developed  correct i did argue invalidity that's true but it was on one set of prior patents what i've got now is the machine itself a machine clearly operates in the manner in which the judge sort of i don't see where there would be a difference in the arguments really make the first argument with respect in that it might be harder but it would be the same argument not the second one of the revised claim construction by saying  thought based on the original plan construct you were ok on infringement yes that inability became more important issue for a change short now i as we talked about i had some of the evidence like we had the machine in europe i just didn't quite have a machine in the us yet well now i got a machine in the u in either the scope of or your incentive to challenge realty given what you had at the time of the summary judgment your second point is a ha i came up with new evidence that judge should have entertained at  don't see how that precludes or for cause of saying ok maybe i can develop it better at trial but what was the or even in allowing you to use a trial the judge said i've decided to viability it and the judge is saying it as i understand it that your you've had your opportunity to raise the defense of invalidity i looked at all the evidence i made a ruling