this case the issue in this case is what is the minimum required to sustain the burden of proof on an obvious defense and a patent infringement action as the court is aware  is these patents in suit were invalidated based on two prior are references one known as the low tide video which was published on you tube back in two thousand and ten and the other which is referred to as the coronet reference which was published on a internet website called the melting pot also in two thousand and ten there is several  critical holes in the proof that require reversal of this judgment of invalidity and i want to walk through each of those but st is with respect to the low tide video it was published on you tube the issue there is whether that constitutes a printed publication within the meaning of thirty five dollars u s c section one of two and we would contend that it does not qualify and specifically the reason doesn't qualify is because there was no evidence put on a trial that a person's skin when the are back in two thousand and twelve which is the priority date of these patterns would have been motivated to go to youtube to find permanent prior are the problem i have with that argument is that we have printed publications where we cases where we found things like a every depends and i think that's the key is the maybe and the end all direct but that would be a question of fatih there has to be some facts there has to be some facts presented there was no evidence whatsoever presented as to what a person skilled in the art in two thousand and twelve would be motivated to look at and that let me address your shoe box comparison it may be that that shoe box was maintained by somebody who speaks will skilled in the art we're of place do you think that this that the cutest infringer who is seeking to enter that in as prior art must also in every case no matter what the references establishes that the location in which it is is the kind of location that a skilled artisan would have gone to yes you think they have to do that even if you introduce nothing it is a just it's not i  searchable on the internet you would like us to create a rule of law that adds to the list of things that somebody entering that reference into evidence must establish they must put up a skilled artisan to sell i would have gone to that location to look i think did and in this context when you're talking about what i would refer to as an obscure you tube i mean where does this stop where does it stop with the obligation of someone skilled in the art in mind to seven years ago to i mean you don't have to prove anything you have it you have to use it i mean you can't german library we got a lot of pre publication case i mean this case is going to my our view is on all fours with blue clips of it there's a holding in that case was that there was no fruit that a person skilled in the drafted on her personal web page but there was no evidence that it had been tagged in a way that it could be find of all unless you knew this particular web address for this particular grad student and then looked around on that web page to see what kind of papers she may write those you tube is something that's widely accessible and it does feel like something that's just a lot of different things that are in the public domain and you tube itself is searchable and so you can quickly access all the different videos that have been a blowdown you mean that's why i did it feels a little different maybe maybe actually oh a lot different to me and a random web page of a single person that's occupying some netherworld of cyberspace that you can't really get to unless you actually know that part specific web address i understand in question i think that mr peeves is no less obscure in this case than that ph d student was in that case so the question is a nice the same question i posed in the district court is the issue isn't whether you can find it if you went to youtube the question is why would you go to youtube in the st place that's the issue and there's and i will repeat there's no evidence in this record that anybody would have in two thousand and twelve and that's the issue squarely before this court i understand judge morse concern that we're creating some sort of new evidence or standard but the burden is on the plaintiff to prove this and prove it is a printed publication and we're talking about pat that have a presumption of the liddy and the standard to vote to fund validate them it's by clear and convincing evidence so it's not a little deal here these were issued united states patents my clients so yes we think blue clip so does control here and that that is grounds number one for reverse of these judgments grounds number two is there is no evidence that either a low tide or the  shows you the picture and then it describes the picture and describes how the cornet system works and it talks about how the system shuts off at one hundred p s i and turns on a t  yes so i mean you have to do a little bit of one plus one plus one equals three but the point here it seems to strongly indicate that there's something automatic about the system turning off and turning on and when it's talking about the system it describes the system as having two concentrators of a compressor and so therefore whatever the device is that's turning on and turning things off it's turning off both concentrators and the compressor it's turning on the both compressors and both concentrators and the compressor at the same time and everything that i just describe i asked him that specific question could you tell by this narrative that that was a automatic engine or a controller device he said no you only way you knows by looking at the picture and i  fleishman said i wouldn't know what that thing is just by looking at that picture and so so that's problem number one with the coronet reference problem number two let's assume just chance that somebody might have known that's a control the problem is it's not a digital control it doesn't send a signal the claims and specifically claim one which i've quoted in the brief specifically says send is that the type of controller that sends a signal is a digital controller and that's what i just what i'm trying to emphasize that mr fleishman agreed with that at trial kitted the cornet is a mechanical controller which has to be hard wired to the other components you're about to run and you're about all time can i i'm sorry can you tell me what was the nature of i am i am troubled by the idea that the decision there are only four witnesses in this case two by deposition trends video and the only question the jury answer in this pattern is obvious this and one of the witnesses who was not offered proffered or introduced as an expert none the less testified i think in  instruction we've asked for the curative yet and i understand it's coming possibly on my mind but yes do you have a recollection of what the nature of the curative instruction was yes share with me basically what the judge told the jury was this  a lay person you're about to hear this video testimony of your job is to determine the issue of obviousness and if that word comes out you'll have to give it the w time that people figured out this this idea of taking these medical oxygen concentrator something combining them so that they could reproduce a big enough stream of oxygen to supply these class torches and that was long before the invention here the invention here came later or the claim to mention i should say came later on a particular variation of these  the one that's at issue here is it's kind of helpful instead of directly supplying a torch is to take document put it in a tank for later usage and so when you start putting into a tank then you have the issue of when you're flying a tank you need to shut off group of glass artist that were very active on the internet it wasn't just you tube they had this form called out where they discuss these things with with each other and they presented links to the various you tube videos addressing the subject matter when counsel says that there was no facts to support the idea that these youtube videos were accessible in the record he's mistaken councils ignoring the fact that we had a four day trial with live witnesses including the authors of youtube videos and they were able to not only authentic hate the videos the dig so forth but they had never met each other personally and yet in their testimony they discussed the fact that they had seen the works of each other that they have seen each other's video so we actually had factual testimony to support that these particular videos had been saying plus there's references to  right and those two and basically everybody testified except for the expert mr gilmore were participants in this in this web form where there was a melting pot  procedure the parties came to an agreement with the plaintiff agreed to drop all the claims except for the four that are at issue here and exchange the defendant agreed to quit selling the accused products and so when it came time for claims construction address is the issue of when that happens what do you do well the peeps reference and mr peeps in life testimony discussed the fact that you two different wall for it's and so there's this little wiring issues when the pain tank says shut off i've got enough oxygen you have to shut off everything in two circuits and the solution of that is what's very common  art is a two pole for which in these pressure switches you can buy him at lowe's at the big box stores come in to pull versions and what the two pole means is when the switch fires there's you can switch to different when it came time to construe the claims the judge has all the claims that had any detail about what a controller did except for possibly signaling we're gonna so we're just left with control of the signals and so the issue where you turned on certain points before other components because the claim to mention it and the huge part of i'll just turn everything on it wants a proper ones but the judge occluded that that would be reading the specification of the claims and concluded that the motion and i might add the plaintiff in that was very happy with that ruling that is now today's come in and say no the control has to do something more than just turn everything on and off he's saying that the signaling he's basically even though playing construction is not at issue here he's arguing the claims to be construed so that signalling has a particular meaning that only a digital controller could perform and i would argue that  since neither even even though this court can you claim construction in albany either party is suggesting that we do that today and also we have the problem that the infringement was found based on the claims construction that said so if the court were inclined to change the order of the claims construction from what the court below use then we would ask that the infringement only be set aside as well because it was decided based on this current claims construction so i think that this idea that signalling requires additional controllers not supported by the facts it sounds like a matter of construction of the co basically said that well if you said no causing the thing to shut off or shut off it is the is the sensor signaling to the switch to to fire and so that's what we believe is the you mr huntsman could you talk a little bit about that one instruction from the judge to the jury as to the nature of the lay testimonies discussion in reference to things that may be may or may not be obvious do you recall what kind of limiting instruction the judge gave i know we're going to see the real writing next week but i read so i think what you recall i think the record you have i think we had the draft  explained that obvious to try is a factual method that one can use to try to invalidate it of a patent so it's certainly within the scope of us of a rule seven or one witness to terms that has a that it has a word that engineers use that know nothing patent and both of them made it clear that they didn't know anything about patents and all that stuff and that they were just testifying from their all experience and that's in the record for both of those witnesses and the jury heard that opinion and he was able to show that there was substantial evidence just based on mr pleasure instead of money that that's a denial of james i think you kind of conflate that in the brief with a bench trial where he made his own findings there's a difference between denying jame all and making your own find it's true but what he did show in that opinion was that there was substantial evidence based on witnesses other than that yes but if there's if there's only person who's only four witnesses in the entire case this is a streamlined patent case which by the way i applaud you both for but when there's only four witnesses and one of them who is a layperson not an expert gets on the stand and says over and over that he would have the things that would have it obvious that's really potentially prejudicial very potentially prejudicial and actually i don't see that it has any relevan told the intricacies of patent law we know it's not simple we know that it's very hard to somehow control the considerations so that it's predictable case is going to turn on the instructions which i am not helpful to and like the court on so i have no home to turn on the line i'm trying to figure it out trying to get it right thank you thank you and one thousand one hundred and two of the appendix judge walker's summarized what he was going to tell the jury says i'm happy to give an instruction to the jury that it's their decision and their decision only to determine something is obvious obvious is a term of art because they are going to apply it and they need to apply the definition as this court instructs them and they should not conflate with somebody what somebody else says is obvious to them with their ultimate task i'm happy to give that qualification but i don't think that just because somebody employs that word is a violation of the case law that you cited were inconsistent with a seven hundred and one opinion and we would  defer to differ with that even with the instruction that you'll see under rule seven hundred and one i believe the basic idea of rule seven hundred and one is if they lay opinion can be helpful you're into the territory of prejudicial and confusing the jury and i think that's the territory we veered into here very briefly on the other issues the issue with respect to the quinn i don't have the page number and can i can find it the mr mr court i did say he might have saw the videos and i want to emphasize that that was plural and the reason i emphasize that was plural d is because mr actually posted several videos only one of which is pertinent to this case the other two of which were posted well after the priority date twenty million one hundred and thirty two thousand and fourteen so mr cornets testimony that he saw the