two possibly three of the issues the first one is the holding of obviousness from the district court and our argument there is basically that the prior art that was shown and how it was described and analyzed two to the jury did not show every single element of the claimed invention and basically the defendant expert utilize common sense or just personal experience to fill in some of the missing pieces and a lot of that was basically corroborated testimony  and without any real specific reference to a single piece of prior art and the one piece of the clean combination that clearly wasn't shown was the  situation where there isn't a priority for guard who want to kill them and well it depends what the element is in here that this was a significant aspect of the claimed invention but you do appreciate that to find that additional prior art i mean that additional elements in the prior art as fact will not necessarily defy the but there has to be some basis for including it in the combination and even says that when it talks about invalidating it is kind of like piecing together the pieces of a puzzle to me that means the pieces of the puzzle have to be in there somewhere and someone then has to show you and guide you how those aspects of the modernizing device where it converts the destination signal from a certain signal and format into a whole report which itself is a completely different type of signalling format if it's compatible with the existing old elevator technology  the other troubling aspect of the holding was that the discussion by the defendant's expert which was adopted by the court was basically well even if that element is not in the prior art it would have been within you know the knowledge or the ability of a person of ordinary skill to design it and that argument hinged on the fact that well if you knew what the input was to this element and you knew what the output was that you can then design that and to me that is hindsight reconstruction because being able to identify what the inputs are and what the outputs are for a certain have here's what that old system could talk to and this is the only motivation but that was presented was kind of they and non special the only motivation it was really presented was modernizing of elevator systems elevators from one system to another yes and there are a myriad number of ways of doing that which had been known and actually it's not just modernizing by cell but it's modernizing in a specific way to include this that's nation dispatch technology and that was also known in the in the prior art to a lesser extent but the specific details of what the claims proc ing about that was converting from the destination signal format of the new technology to the call report of the existing technology and that piece is what was not known in the prior art and the only discussion that that was given was really the in the nature of and substituting one control system over another involves something that's similar to what was done to your patent with respect to the destination that was similar and a very very general sense but if you look at the closest piece of prior art on this which was the of oscar reference which was actually in front of the patent office during the prosecution that didn't show this kind of conversion and it's not just a simple  yes the second issue that i would like to talk about is the exclusion of the secondary considerations of non obviousness which severely prejudiced our ability to to rebut any kind of obviousness determination you're talking about freely that's part of the overarching issue as the court's insistence from the go that you need an expert to put on evidence to show that you as the patentee practice your own patents well i don't think he said i think he said that you can put in evidence but you can't use this guy's an limitations existed in your prior arkwright well friedly the testimony that was being developed with with the inventor friedly was to show how patents he makes its own your argument had to do with his exclusion in motion women eighty two and three of commercial success and copying evidence and you're quibbling with judge douglas or something that i'm having trouble understanding where it gets you or why the shaking it and why you are moving on to what i thought i understood your actual argument to the judge the district court basically said as a preliminary matter before you can introduce any evidence of counseling or commercial success you have to show that you practice your own path right near that anger to produce enough evidence to do that so why didn't you ask him to allow you to put in evidence of nexus once in your view us stablish that you did the evidence of how that juror commercialization and then he prevented you from having your expert do the element by element analysis in fact point did you try to put on of how the installations are done there was a sidebar discussion in the court and the judge said if you're going to have him talk about how this matches up plans i'm sure the other side is going t direct and i'm going to suspend that and socially if you can't do it then you shouldn't try it that doesn't have anything to do with your community answering substyles question and you're sort of going away from the point that i was trying to help you get to and it's my reading of the transcript that the district court said ok well then i'll hold off on motions in limine a three until you go ahead and do that in c so i don't know that i interpret this record of him having granted that motion brief to us is three testified the testimony was sufficient to establish the necessary nexus if you believe that that's your argument to us that was your are if that's your argument below why are you asking then why are you moving how the factual aspect of the implementation he didn't measure you didn't say that you have to have an expert all he said was that if really is going to do the clean chart element by element comparison he's not qualified for you can't do that but practicing the patent and yet you didn't come back and say well now that we've put in that evidence please let us put in the evidence copying in commercial success correct well my understanding from the law is that correct  legal conclusion the factual issue of course is whether there was substantial evidence to support the jury's presumed findings that all of the graham factors were met and  asked the inventor i said in this article dr schroeder was suggesting exactly what you did in your patent was that the answer to that was yes so that's one good piece of prior art our own expert went through i i mean i kind of agree with your reading of the record quite frankly but when i read this district court actual opinion on jamal and in response the motion for a new trial when they bring up the exclusion of their secondary consideration evidence he doesn't say what you and i both think this record suggests which is they were free to put it on they chose not to and they didn't bring it back up instead what he says is exclusion was proffer because quote plaintiff failed to address this issue in any of the six reports and thus the evidence was properly barred so that you know what you and i might read the record one way but when the judge says affirmatively the record is the other way that is really tough what do we do about that well let's focus on that for a moment and the issue was really before the just record whether or not in this particular you can put on facts you know reconsider the problem that inventor you have created for themselves when they never pursued that they never went up on sidebar and said all right we've put on evidence now most of our commercial people to talk about the connection between the two and that's what they did and that's really the problem and the argument if it wasn't excluded they just didn't take the next step just because iraq could exclude he said dust the evidence was properly barred the judge has excluded the evidence they say he certainly came in here thinking ultimately he had excluded it and his own statement is that he did it yes it was properly bar so what do we what do we do with this well if we conclude like for example is it your view that in every single case expert testimony is required there are simple cases where would not be required but this jury issue would would have been much better insulated had it said this is complex technology and i having heard mr friedly i can't conclude that he met the bar that's necessary to establish nex if we come to what we're getting i guess the question is that there seems to be a way in addition to the ruling the judge moore's referring to there seems to have been a believer in this record or the failure to offer the nexus testimony that is a commercial success in the copying on the theory that the testimony lay testimony if you will of friedly was sufficient to establish access and nexus and no commercial success then we'll live with that well all right that's fine but then instruct the jury what the effect will be on obviousness if there is commercial success and if there is copying from whatever was in the record industry obvious as if there was enough in the record i guess a point and i thought you were arguing your brief that the failure to ask for the instruction was a bore that would be a waiver that was there that was there out there omission i mean my feeling is always then if you want the jury to come back and tell you something you have to ask for it and in this case that would have been instructed which would been very easy to put in of of a secondary consideration and as to the commercial success there was no evidence put on of this case at all that there was a connection between what was in those commercial units in the commercial success of those here so that would have been very easy to put on because they had their commercial echo their commercial wit that the patent says that the converter three sixty one which is the critical items that does the conversion function of assume the claim for the modernising ice was not only commercially available but it was proven in the the conversion of the destination signal to the call records so that was clearly erroneous the illegal error that the court made was grafting on to this court's principle in the consolidated aluminum case that the intent into the area of actual deceptive it's happy because if you know that something is false you you can infer from that that there is a supplement set so i suggest that grasping that additional requirement of knowledge onto the requirement for the consolidated aluminum principle which is a very was error because it's a very specialized principle it's only come up once and given the in response to the point about whether the district court ever initially determined whether this was or was not a complex technology and then therefore it was expert testimony required or not in this connection that analysis but was never made i f you read the trial transcript and if you read the court's opinion the starting point as an expert is needed therefore that there was no pre analysis of whether this merits an expert or not in terms of the complexity of the technology the point about whether there was a waiver or not of being able to present this evidence that concept is nowhere  discussed in the district court's opinion because i believe the district court didn't think that there was a waiver because if you go back and look at the pretrial conference the discussion around the motions clear i asked the court i said we've put on dr friedman i'm going to have him do this and he said well they're going to start objecting i'm going to let i'm going to sustain that effort that this is just testimony you claim yes which was the gate keeper which you the only thing that excuse me the only thing you're excluding at that yes but that was then the gatekeeper to having him having anyone testify about the cop