summary judgment of infringement thereafter i have several issues i like discussed depending on how much time is left not additionally i would like to invite the court's kind attention to the fact that over the weekend we just fiscal which he stated is partially accurate partially inaccurate your honor the expwy container did not have four side walls that is the critical issue that's the issue with regard to why with the crew portion in the twenty that may be your view your honor and that might be a reasonable jury of you if they were on the jury and they were given the opportunity to decide that was the trial judge's view that was a this is the there is no factual dispute that this is a structure correct the question of whether or not the elements are met was a factual dispute that is how many sidewalls emanate from the bottom wall that was anyone do not that's not the issue the the issue was our expert are and whether it's just because he's an expert just mean you just drive his opinion the fact is he observed that he had done applies that's what it is you can look at that and see that that's three walls you may conclude it's for if you were on the jury that would be your option in opposition to our motion for some reason in opposition we we oppose the motion for summary judgment they submitted is in fact that that is in opposition to the evidence that we submitted that it was three sidewalls this is classic rule fifty six a genuine issue of material fact our witness looks at it and says there are three side walls emanating from the bottom wall their witness looks at it and says there are four back to genuine issue of  yes sir yes king exactly right it's a genuine issue of fact that's what our witness testified to one can take a look at that botha graph and you may say that's that's for you may say that's three the question is the constitution says we have a right to a trial by jury and both the supreme court in the liberty lobby case and this court in the metro case indicated that on a motion for summary judgment the inferences are to be drawn in the nonmoving parties favor and our evidence is to be believed that's our evidence it's a genuine issue of material fact and again there's a photograph we have a larger photograph of it it's in your brief and the key is the focus on the what comes out of the side walls what comes out of the bottom all are there for side walls here there were not for side walls that was a genuine issue of fact now the they say it's just a they argue a case acted in the court agreed art and said well this is just a question of claims it is not question of my instruction there is a genuine issue of material fact the second issue i would like to discuss is the trial court heard in connection with granting summary judgment excluding hobson grimes as relevant prior art now this is fully briefed but i would like to invite your attention to the supplemental up already we submitted in the supplemental forty is the decision of the board of patent appeals of march twenty sixth of twenty thousand and twelve this year a couple of months ago and it's the reexamination of the one seventeen pack and in that opinion on page eighteen the court not in the claims at all is there any dispute that that's the problem that the invention was getting at that's the here interest here that's certainly an area of interest doug mr dixon testified that that was what he had intended to seek to address in addition one of the issues he was addressing was keeping it to containing him in the same box and so it would be easier for customers to use so there were at least two issues of who was cavitation issue except it has to do please if you look at the board of appeals decision what the board of appeals of death applies the is this art is in the field of endeavor if it is in the field of assistance in solving the problem of their dresses so i think they are to the board of bad deals does hold that is it is in the field of endeavor in addition to those two where there were significant trial difference here the only difference you've got still the one two three four sidewalls and then you've got the slightly curved truncated well up and then they argue two things to the district court they said gee it's got to be flat the court the claims and said a truncated walk to the curb they don't appeal that they also argued you have to have corners between the sidewalls and fifth truncate wall where it doesn't infringe the court rejected that as well the container is what it is there's no the geometry is the reality of the container is not in dispute there's nothing to go to a jury what mr carvel is did was to take the claim construction position of no corners and say gee this is a continues to be curving wall or a continuous law and one thing the court had the record shows we presented this jar to the judge and the judge's order campbell said visual inspection of this and you can actually see in this jar the lines where they inserted the mold change to make curse flat you can actually see the witness lines i'm happy to publish this to the court that the sa it and he draws one shark winds between the blue and the red and the green and the red and the and the blue agree but in fact they also are curved if you accept their argument there's the padded invention since those are all curved corners corner case that you have one wall well that's not a path disclosed the bottom line is there is no issue of fact it was proper to take this for the  judge to decide these issues and the only true factual issues that this court's precedent is very clear that when the issues are not in dispute they can properly be decided by accord in managing it and this does not involve any issue of fact merely a repackaging of claim construction and the court didn't ignore that expert declaration or affidavit it directly addressed in the court's order in the court itself  argues that we submitted a big reply well that's not really a fair argument to make in respect to the issue we presented because they have a cross motion for summary judgment and said you've got to have witness testimony applying walls so it's really a response to their cross motion where we submitted the declaration of the evidence to on the issue we in that same reply in that same point we said a visual inspection of the jar talk about a problem of putting a jar in a quiet box those handle problems were solved long ago and are not present in the art quiet box issues and fitting in there what they did it with this court last week once again reminded us that we should do and that is define the problem using the invention and that's what they've done here when you look at mr dix his declaration when you look at the patent he says each and every time and he interrupted tory response that and what this remarkable invention did was take something a smoothie like a mango a go go that took forty two seconds and it took a democrat what and when we had the whole jar versus this jar this jar would do for according vita mix his own customers that would do it for smoothies in fifteen seconds there could only need to thirty seconds which caused them to say that all of our customers are going to leave and go somewhere else that's part of the real world story that's also part of grants and huffs so the new very important we didn't have a situation where this was an obvious invention grants of hobbes were never referred to mr briggs talks about the patent office will decline decision just last year talked about reversed the board where it tried to apply a bunch of non analogous art to this fixing the problem that klein faced with which is a bird feeder with separate compartments to separate sugar and water at the proper ratios and issues like boxes that have files and dividers in there they're not analogous in the core once again reversed that finding they were not they were not the issues so you've got many cases talking about defining the problem by the invention that's wrong hindsight what happened here is nobody went to see grimes and hunt and nobody looked at brands and hobbs miller didn't suggest grams a ever never did that and they we've got the argue we set out in our brief very carefully the the response of their their people wow this is a breakthrough how do they do this what happened we were surprised they immediately recognized the solution for their problem would be to copy this device and that's what they did and then when the patent was about issue they tried fourteen different design arounds and importantly we did they did he didn't get to this actually one of their primary references part of their design around options was an ash type design with an octagon shape  rectangular opening at the top where they cut off all four corners and what happened the testimony at trial was clear it didn't work it didn't work at all and it it it so they went to the invisible change where they didn't want customers to know the difference they market in the say they kept the photographs and advertisements of the m p to sell the x p and then later put the both in  the by the way the field of invention that's not even a physician vitamins ever took they they were arguing yeah the agreed it was in the field of the invention which is blending they tried to rope  by saying it solved the problem but again they've run afoul of that well settled precedent that you can't define problem now by a couple of other arguments that that that i want to touch on once again before my time is done the issues relating action it's again it's going to be in the next appeal it's in this one of the issues with this invention is mechanically quite simple and  i think the missed decision is a great one that was decided last week to help us with the technologies like this where we look at that real world story least in our view the evidence we have this objective evidence of obviousness is overwhelming and perhaps unprecedented but what we have with the invention is you've got this generally rectangular jar every claim it is shoe in the lawsuit has a rectangular configuration where you replace one of these typical doesn't do that is simple if it was very well known and it's very clear in the prosecution history the pattern the specification the path and that when you have equidistant area that is not going to infringe back to the one way to give the telltale sign of what the invention is and what it isn't is take the invention and say ok let's monday truncate that corner and extend it hypothetically what do you get in this chart shows well because it shows it and here you get what is just like the others when you truncated one of these is not like the others never look at x so we have an invention when you unto truncate one of the ash proposed typical corners you don't get any typical you get an atypical that was a dentist five and it mid two by their own experts it's not the invention what i was getting to before your question is in that power point presentation when they know that patent is about the issue they put right in that power point corner where corners are all equidistant from the centerline of the blade here they're clearly trying to design around they clearly identify an octagon structure as not infringing they choose not to use it why because it did not perform it capitated that's why they stayed with a copy of the invention when they had more than a products engineers look at this is safe this is not going to infringe now had they gone forward with that four cut out of corner concept would we be arguing infringement today not a chance because of the disclaimer we got through prosecution we waited two years and stayed the lawsuit during prosecution of the reexamination and then redid a trial and there's actually closing prosecution and we wouldn't go after because we overcame patch now i think a similar disclaimer argument applies to the first how can we construe the claims to cover ash when they were clearly we said no it isn't ash and that simply shows symmetry form corners which is another reason why the c u corner that they want it's clear here away from the blade it's not where those walls twenty five eighty through the wood meet it's no matter how you slice action it is it is not going to cut it the district court of the series of well reasoned thoughtful legal arguments took care of issues on summary judgment managed a difficult trial submitted issues to the jury the jury found patterns were friends willfully and fringe not infallible and assessed damages it's been a long time coming but it's time for this case to be over in the judgement to be affirm there are two points i would like to respond for summary judgment very very critical issue here it is important to remember we submitted an affidavit that said there are three sidewall therefore there is printed and that's what the court found infringement now in opposition to our affidavit they submitted there as i say two hundred forty four pages and to be sure some of it was in testify the ex the container has four side walls that's in opposition to our affidavits they further state indeed there has been very clear and specific testimony of the expwy container has four side wal that could not put in issue a that could not do any better creating genuine backs will issued we say three they say four the judge looks at it and decides for that's for the jury to decide that's what again that's what we were deprived we were deprived the opportunity for infringement to be decided by the jury as the law has decided the second issue i'd like briefly respond to and that been questioned and he at that time testifies with regard to one of the problems he was addressing in the question was but at that time then your goal was to sort of tackle one issue the time and make a blender jar that would fit into the existing quiet box correct answer it was an added benefit question it was a consideration you had in mind at the time yes it was an issue that was being addressed at the time and the words the