is the motivation to combine the known elements in this case with stark government agencies actively exhorted manufacturers to take land based catalytic converter technology and put it on boats the government sponsored study said do it this way it provided a road map the only two manufacturers in this industry followed the road map and exactly the same time to produce similar products using the very elements that were described in that government sponsored study the invention was obvious and all the alternate later on it played by have the time to what makes this even worse which is that color was found to have been willful even though it came out with its product for years before the patent even issued so let me start with obviousness which i'll spend most of invention is it right that it did something that's unconventional and in having some kind of perverse control system with respect to air and fuel and being introduced into the engine where instead of the operator with the throttle introducing air into the engine the operators now the one responsible for injecting fuel and then there's some kind of computer that tries to figure out how much air and introduce which is the reverse of what is customarily the correct and that was an element of novelty that that particular manifestation of the function has been has been reduced to practice but i just want to emphasize if you look on page twenty five of our opening brief there is the claim that sort of the key clean your the  skill in the art picked up that off the shelf if there's something kind of i don't know oddball about what phipps is doing and that's why i'm trying to understand what is e g our what is it's off gas we circulation feature is that something fit needs in order to do its reverse of the air and the fuel no you want to there so this has the five elements that we were talking about things one is that it flips the fuel in the air and that you see in a comparison between figure one and the year to tell the kind of odd in a marine generator witness because instead of the a water how does that work you know so you're out of the water comes later on the water jacket but the water doesn't mix with the marine engine and that has been done many many times the addition of coolant to a marine engine doesn't interfere in any way but to get back to judge chen's question so there are two separate things technology use this feedback control scheme which is straight out of its as well but it was common of my concern is you know i understand that sips at almost all of the elements of the clay and so that's why your side chose fit to be to spotlight as the primary reference but along what comes with fits is is some challenging issues for you in that we have unrebutted testimony from the other side saying that that is a very strange breed of combustion engines and that nobody has ever done this before and nobody would want to even try to work with it because of all these difficulties whether it's doing the reverse of the flipping of the air that exhaust gas research you lay ssion that was done in marine engines in fact the southwest research institute report the government's done a group study government funded report that i mention refers to the g r so that underlying factual finding was found in favor of that conclusion correct yes your honor and motivation to combine as well as likelihood of success as a component of motivation to combine our factual review that we're looking at it is the review of a jury factual finding in other words we have to conclude that no reasonable jury could disagree with you on what philip teaches or whether there would be a motivation to combine given the the very points that that judge chen just yes you're right it's a substantial evidence with a couple of plane legal principles with that that this court consistently reviews for for example back to judge chan's earlier question this court has said multiple times back to back me in and again most recently in abt that an expert can't just come in and say oh no that's patent that would never work you wouldn't even even of work in a land engine which is all of that this expert well he said was he was impeaching the original invention not whether you can combine it with water he was just saying i would never think that you could use a land engine in this way so that this court has said that simply impermissible testimony simply to impeach what is presumed to be enabled prior art but what if the expert testimony we read is to is so bizarre i don't see why one of cornerstone the art that was looking to solve the problem of reducing carbon monoxide emissions with the marine engine would start with this well  unusual and difficult and unattractive about steps if in this expert's estimation that you wouldn't want to start with that it was almost like starting from a trench rather than on on plain gr in trying to solve the problem well again you still take steps for what it teaches apart from that reversal if you will in error and it still teaches those five elements including the one that was found to be inventive and that ultimately over  team the rejections that one element being controlling speed in the air fuel ratio with the same time phipps still teaches that even though its implementation of that is described in a way that this that this inventor excuse me that this expert their own engineer referred to is audible but i also want to get back to your honor's point a judge chen about this being unrelated testimony it was unrequited only in the sense that amber was the last one to testify but our expert did get up on the stand and say yes of course there would be motivation to combine he said those words a country to avoid my friend says on the other side and he specifically said the reason you would start with it because it solves that problem this is exactly the sort of thing one would start with and again to underscore that the government sat is start with catalytic converter technology focused on that or in this with the piece of prior art that there was a lot of catalytic converter technology out there that would not have worked if you could have put together with the school and elements and you wouldn't have gotten a functional general there were very few catalytic converters your honor that solved the fixed speed problem i mean this really was a fine a universe of prior art of on any engine at all that solved this six feet problem and against it suits me the expert standard the supreme court ends up adopting it will almost certainly have a knowledge element and there was no evidence of any knowledge on the part of coal or that these patents even existed  different additions strategies and sometimes years and the problem it fits with trying to solve is how to better control this exhaust at three circulation so he came up with the idea of this reverse control scheme where instead of when you push down an  or putting air into the engine and having the computer calculate the fuel the reverse when you push down on an accelerator fuel goes in and then the computer calculates the air and the idea being if you reverse it and you control the air in the engine you can suggestion that you could use that for marine and there was extensive evidence at trial for mr amber that you would not have considered adapting steps for marine engine to talk about it just chen was already asking about that fip probably wouldn't even you need to have this very tight control and septa scheme one of still in the i would look at it and immediately know it's not suitable for that type of engine why is that the but because the fifteen would not adequately control the engine but it just wouldn't work to even run an engine let alone give you the kind of tight control if you're trying to do secondary emissions control which was the problem that the inventor was dealing with here which is the carbon monoxide particularly but emissions generally and in fits with this reversed scheme that designed to improve the would research seems to indicate that that's a possibility yes it is a possibility in southwest research institute that was a prior art prototype that was being tested on a lab bench but it's also noted in that same report that a lot more testing used to be done in the water environment in the actual real world environment that was a lap or attacked the problem here was a deficiency in what their expert said he completely ignored what you would have to do to fix you know to make it actually conceivably work in a marine  said alright if you were to start with steps and someone were to tell you i want this to be maronite as you would know to add a water jacket around the manifold and to inject some liquid coolant into the exhaust and you know to do those two conventional teachers but that is not enough and the in touch case that we cite in our brief talks about that an expert can't simply say if someone had told me to make this conversion i put have done it and would have known what to do that's very different from  motivation to actually take steps and converted to marine but i guess the idea was there there was a strong motivation at this particular time given that the government was saying we need to reduce carbon dioxide emissions from these marine  s and so therefore the obvious thing to do is take existing land engine technology and see what we can do gates to maryland's well the land engines and not solve a couple monoxide problem either this was talked about using a catalyst would be a conventional thinking do well here's if you had someone in two thousand to someone still in the field if you put a catalyst into one of these marine engines would you reduce carbon monoxide is their answer her answer would be yeah but not by the meaningful amount you need to have any impact on safety and i think an analogy probably would explain this point more clearly if you were to climb to the top of the empire state building and jump off you're going to have a sticky ending if you were to climb fiftieth floor of the empire state building and jump off half of battle fall half as far same result same to the twentieth floor tenth floor third floor to make that jump safe you have to reduce the jump by more than ninety nine percent so if you were asked on a film the art paid by put a catalyst and there my going to solve this problem you're going to go from the hundredth floor of the fiftieth floor maybe but that's not any kind of solution what this invention did was by putting together these different testimony to this you know really vivid account that you're making or the empire state building and now well now i don't know our expert didn't use the empire state only he talked about fenway park at one point that you're reducing from the entire stadium to the players and coaches and whatnot on the field willfulness precisely what was the record evidence of knowledge and whether there are two things to point out here first there was actually a judicial admission of knowledge even if that's right it only gets you to two thousand homes right right but that's no longer matters because they're not appealing the amount of enhancement so how long they knew about the patent would only matter for the amount of enhancement of damages not the existence of willfulness or are you saying but ok but it's interesting so are you saying the only the other thing was evidence a trial from which a jury could have reasonably inferred knowledge going back to the issuance of a patent and that was that we mark the product prominently with the patent number this was a two player market the parties went to the same couple of trade shows every year the idea that they never noticed that their only competitors product at this very big patent number marking on it for all these years is hard to believe and they presented nothing at trial that we counter that inference they didn't call a single witness who worked that color after two thousand and eight when patent issues so the judge actually found in his decision that there was evidence from which it jury could infer knowledge going back before two thousand and ten the point where they admitted knowledge so just accepting the  and we are operating under seagate and bard at this moment so given that there certainly were a lot of arguments that were made ultimately the jury did not agree classic kinds of reconstruction it's we're in litigation here is a steps reference that happens to disclose one of the limitations of the claim in a bizarre reverse embodiment designed for land use and designed to solve a different problem that sure hindsight to go from back all the way to the invention and the secondary considerations here were so powerful now mr other kinds briefly mentioned the nexus point and i think a nexus there simply using the wrong legal standard the way they're approaching that s body appraising commercial success and some novel combination of the client matter that the claimed invention merits the kind inventions the most common phrase other phrases are used but that's the idea and the problem with colors approach is if you base that off or whatever prior art reference the defendant happens to put forward they could put forward two different priorities frances and now you're proving next time instead of next up to you don't want to return to the just the heart of the invention notions in the face of if you know no it's not a just it particular new limitation as opposed to a novel combination of old elements and i can point to three cases trans ocean six ninety nine after thirteen forty the secondary considerations were to the efficiency that was achieve combination not to a particular one limitation that was different from a particular reference spectra let x six forty nine thirteen thirty six thirteen thirty six which was a pattern that had to do with machinery for created by the machine and then the third one which i think is the best one is rambis which is seven thirty one after and twelve forty eight and i'll read a passage from that while objective evidence of non obvious flaw with approaching it the way color does because you could present two different directions is where there's one limitation missing in reference a different reference implementation missing reference b and then you're suddenly so what are you relying on the entire cl getting rejected over and over again until you finally amended the claim to add this feature about maintaining engine speed while also at the same time maintaining monitoring the air fuel ratio yeah that comment that control of a don't those to a functions you are and have any questions specifically about it but i think the problem with the reason we have to cross the field is the district court just didn't apply the proper standard in assessing injunction it needs to reapply that i think it's important is it just a simply a question of using the magic this one overwhelms all he said is i find public interest favors color and the other factors may not be addressed and that's different from making a finding that he actually balanced on and his public interest finding was founded upon a factual error that he actually conceded in the in the i'm trying to understand exactly what he's seating for the bachelor what the assumption that your client would not have the capacity to satisfy the market is that right that's right and in the one reconsideration if he conceding that that you governing speed and a mission control in the background says it is well stable speak controlled plus a mission control if there is further no evidence in the record that that tips did not control carbon monoxide emissions it says it did there's no evidence that it didn't there's just an expert who was the engineer for wester b say well i never would have started with it but the question under something that it would have been a motivation to take that prior art with a likelihood of success in creating the combinations and their evidence that in fact there was not a like this there is evidence only with respect to that particular piece of it only i wouldn't have used this because i don't think it would have worked not i don't why wouldn't of use this because i don't think it would have worked with water they were impeaching reference itself which is exactly what you can't do and the references to water were all references to why you can't just take a land engine and throw it in water then it was you know it's got to be fire tested and water needs to stay away from the engine though those were all problems that had been solved and with respect to a motivation again the ethical or i report says this is how you would do it and then there was evidence before two thousand and three that when people tried with the estimable or i report recommended they didn't indeed achieve negligible c e o and that's a peach seventeenth two thousand and two eleven one last word on on knowledge if i may you cannot affirm a jury verdict without evidence of knowledge there was no evidence of knowledge before the jury w b i p did not introduce the mission before the jury about this finding out in two thousand and ten and this court is reviewing the jury verdict and there is no evidence that this product with the patent on it was ever shown in a show after two thousand and eight which was when the patent was issued there was evidence that it was shown in a show on a trial basis way back in two thousand and three two thousand and four actually and so there's just simply no evidence and certainly not a clear and convincing basis to demonstrate that the subjective element was satisfied if there are no further questions we