would be helpful before discussing the refusals on race judicata to consider some of the reasons why we have a registration system for registering more and if you want to get on to the area of race judicata which is an important area that was the grounds of the decision below right that was one of the grounds the other alternative grounds with the ground  reflection of policy in focus settle disputes and put an end to litigation the prosecution of patent applications is not exactly either eight dispute or litigation in the usual sense of inventions have been disclosed and properly claim so that inventions are made public through the grant suggests the same considerations apply in connection with applying for registration of trademarks that what we're trying to do with the register of trademarks is we're trying to set a public record there corresponds to the substantive rights of say the registrants that are there register performs a very important function of letting the public know what morgues are being used and what more are owned by registering so that when we go out and we get a client who comes to us and says gee can i use this particular more we can go to the register and that helps us for using it or in the case of say a possible infringement why the we want to be able to register reflect this right now looking at this the civic case here with this specific war we have an example of how someone as appropriated copy but if that shape and we're talking about a shape here away if that shape is functional do you have any entitlement to rights in that particular shape we'd have if it is functional but what is functional well hasn't this court already decided it's functional and like that you're bouncing sound off of the back of the speaker and so that suggests that you need an angle coming off of the walls you're going to pounce the sound off of and that as this court seemed to say in one nine hundred eighty five suggests the pentagon sha a continuation basically in what happened in the course of that if it's functional and it's been adjudicated functional do you have any rights in the mark you've made a bit of a very beautiful speech here about how you know the register gives snowden's to the public but do you have any rights if it's function you have you need to i think look at what happened in traffics to what the court of the supreme court  talking about functionality were points out that there may be design features of it that are subject to protection no look what this court said in the prior to this decision but wh what's the difference between what we're seeking to register here which is substantially pentagonal cross section which occur front pages which are plainly not functional and i think this court got it right utilitarian advantages for the feature you won't find any disclosure in any patent any advertising do i understand you correctly to be arguing  that the one nonfunctional feature is the curb trumped everything else you will concede to be functional no that's not correct your honor because as of it that court did not have the benefit of traffic telling us to look for nonfunctional features and telling us to look at the claims for non functional features so  is nothing in any of the literature or the patents which attribute the utilitarian damage to what is here now you're saying well we're talking about the cur start the mark because it's all that's going to happen is that it gets published for opposition those who believe they will be damaged by registration can oppose if they do which is not likely to occur in view of the long period of exclusive use of this and you can look at the honeywell case and see what happened that the board at that time when the register at the second time said of course one would have to be free to go ahead and there's an awful lot of commerce and bows commercial products could those have been doubt this was secondary meaning it is that relevant it would make a difference in this case as you point out at the end of your question i think it's when you asked it's close not simply claim but disclose you have a heavy burden you have a heavy production overcome it is strong evidence they said it four or five different ways to overcome it they say you could never do it if you look at the end of the opinion that was an argument that said you could never get to actually if it was they didn't say never but they said well wait and see for that case before we have this issue so anything the law that applies here which i think to be fair the court recognized toggle scripture but if they did that it would be a completely different case there'd be searchable they have to one decide whether or not the curve from it is ornamental and if you look at the pattern that i just cited to you i those are her they show how the problem placement of the speaker makes a difference in how things are firing and they want them all to land in the listener at the same time so i think the court it would be completely different case and they have to be the first people to have a her friend on their speech and that's not necessarily true i mean i don't even know if that would be true as of today to quote if you get to the functionality issues here  whether they should know whether or not they can practice this if you allow this to continue over over and over again i think what will happen is computers will never know you could just reapply five years we'd have more time and more arguments and if you look at the arguments that are made in this picture of the same picture two different ways you can't change an earlier decision the other two are your survey only made or whether or not you could have different designs the court recognized in the first post one case really did make a difference in th the other designs are irrelevant and the last point is whether or not you can make it cheaply this argument was again a pose one and they said even if it could be a cheaper court noted that the times to suppose you could make it cheaper and inexpensive it was a feature there is folks following again the reasoning of traffic's that if you can identify are not the truth they deserve some protection why wouldn't we perhaps apply a test of potential alternative designs accompt accomplishing the same function and determine that there are many shapes besides a pentagon that could bounce off all walls to accomplish the function and then given some ornamental status to this particular pentagon i think there's there's two answers first of all as the court said it was one logic dictates that the simplest way to page it's hard to find the jump sites studied sixty six but if i could quote from you what they say they said further the matrix of post systems could be enclosed in commercially it's the same facts same was same holding traffics didn't change it and it would be hard i guess unless it was completely different even alter that decision just as what a further question since the effect of porn competition is really the crux of the matter it is of course significant that there are other alternatives available the very fact that we're concerned about traffics in this case for shillong without anyone else feeling it necessary to get in and copied this particular product and the only evidence is of where someone comes in and copies  conclusions that really require expert knowledge to do to do and they are not experts in the field of all ideal would not pass the dogbert test to testify in this area so for these various reasons we submit that the case ought to be reversed let it go back to the office there are published for opposition by anyone who believes  and still open to the entire public to make opposition to the positions we have raised here thank you thank you mr hi can we have a new case case to be taken under advice