aside from the extraordinary simplicity of the invention claimed in the six to seven that which merely computerize as a long established method of selling parts the record suggest two powerful reasons why the company founded by the inventor mr johnson would be willing to sell that patent to a patent holding company for a song one reason which i'll discuss in a few minutes is that they were late to the electronic parts sales part competitors like bell and howell had already developed and extensively marketed similar systems the other reason though is that they knew from their interactions with the p t o that they had a problem with their own on sale activity really go to the issue  strong it's both of those your honor and i i i'd like to begin with the on sale bar and i'd like to begin that discussion by addressing an issue a clean legal issue that is in some ways logically anterior  to the consideration of the on sale bar and that is the critical date or filing date issue which presents a clean and important question of law and one that we think the court will likely want to address regardless of how you decide the other issues and public use during the parts fair from november tenth to the thirteenth of one nine hundred eighty eight and as the district court also recognized and again the filing date on the face company sold the patents to ryan sixteen years after the patent was filed and at the time that arayan filed this lawsuit in august of two thousand and five the filing date was and remains nov thirteenth  not more than one year past the time of the parts fair it wasn't until october of two thousand and six fourteen months after filing this lawsuit that a ryan petition for a correction to november for they renewed a petition that had been lying dormant at the p t o for a long time that petition was granted less than three months before the trial began and it was only three weeks before the trial that the district court ruled that the critical date would now be november tenth rather than november thirtieth is the relevance of all these date counsel it's relevant to the court's point in several decisions such as southwest software that makes that it doesn't make sense from the standpoint of the public notice function of patton's to allow a critical date or a filing date to be changed in mid course after litigation has already begun and and so what the district court did with that last minute change in gauged in exactly the kind of mid game goalposts shifting that southwest software and other decisions are designed to prevent and although the district court didn't analyze southwest software it seems to have recognized that that decision and others like it for close the application of the new filing date and pending litigation it also seems to have recognised that because the alleged error wasn't apparent on the face of the patent under this court's decision in novo and other decisions the district court lacked authority to correct that error on its own so initially the district court adopted a different approach and said ok i'm going to invoke section twenty one to extend the one year grace period backward by three days based on the fact that november tenth of one thousand nine hundred nine was a federal holiday and on that basis the district court ruled in a published opinion that has now been cited by other ports it but that it was deeming the application to have been filed on the holiday or the weekend day but regardless olof it is a decision about initial patentability and what we're concerned about here is the authority of the o and the authority of the district court to change the filing date or the critical date once litigation has already begun and indeed just a few days before trial but it is true that as off pointed out if if the weekend mailing rule of section twenty one doesn't apply to one of to be or one known to be then you have an unusual that that may be true your honor but but two responses to that first of all it does seem to me the better reading of all law is to say in that situation you just deem the application to have been filed on the weekend day or the or the issued with a monday filing date should be deemed for purposes of one zero to be to have been filed on on saturday the year before i important point here however the court interprets interprets all law and interpret section twenty one the important point is that this was the this was a change that was made in the middle of litigation and i'll point out that all of the district court initially said that it was going to move t move the the critical date backwards when it came time to instruct the jury the district court actually instructed the jury that the filing date was november tenth and therefore that the critical date was november tenth the year critical date ultimately he gave full effect to the p t o s certificate of correction which southwest software and grew one and and novo and a number of other decisions say that you can't do in  anticipation absolutely as well as the on sale bar so i'll come back to the on sale bar after anticipation if it's alright for thirty one familiar with parts sales and computers it's hard to imagine a simpler idea than the one that johnson patented if you if you merely read the claims and and the patent itself the heart of the claimed invention of course is claim one which consists of four simple steps only the last of which was contested in the anticipation case well the first point that's important on the proposal step is to remember how the district court construed that claim the court construed it very broadly in a way that made it very difficult to contest in french mint but also made it very easy to establish anticipation he can screw that that element as merely information any information intended for conveyance to a customer now given the undisputed facts and that controlling construction we think there's no question that all three of sort of claims here claims one and then the deep deep in a claim seven and eight were anticipated by the i d b two thousand system which was an electronic parts catalog system expressly designed among other things to facilitate retail parts sells sales and it was widely sold and used before that this courts chosen critical date of november tenth we recognize that the standard is high we have to we have to demonstrate in order to get a new trial we have to demonstrate that the verdict was against the great weight of the evidence and the good judgment as a matter of law we have to show that the verdict wasn't supported by substantial evidence but again based on the undisputed fac and the binding claim construction we think it's easy to meet those both of those requirements to get here could you explain to him why this issue is properly before us and i'm speaking now was respect as the jame all standards fifty a fifty b n the waiver problem right and that that it goes only to the relief even if the court were to accept the district court sue a sponsor a finding that we that we waived our request for judgment as a matter of law that we would still be entitled to to a new trial on the same basis what do you mean on the saying base well if we establish that the verdict wasn't supported by substantial evidence sufficient to get judgment as a matter of law then we have necessarily established that the verdict was contrary to the great weight of the evidence so it's not quite the same basis it's a different standard it's awful if your and our view so but that in fact we believe for reasons we've set out in our briefs that we did in fact preserve the issue when you look at the context in which one of the different court didn't didn't think that you preserve the only statement made that i found in the record this is a statement that the district court mentioned in the decision was your comment we next week partial judgement as a matter of law based on prior arc and and where it has heard the testimony of the argument about that so your argument ice i assume then real piece of anticipatory evidence that was in play the idea get two thousand and the judge surely knew where you stood absolutely we had we had talked about instructions on both obviousness and anticipation that some link over forty pages of transcript prior to that and they and our evidence on those issues had just been put on the day before all there was at the i d b two thousand that yes we're talk while i didn't you say that well the the reference to prior art the only the only prior ar we had was this id two thousand system that was sold under different names and it was there a whole bunch of preferences and of course made the argument and you made the argument before us here that that it was single reference one o three asserted the single reference obviousness asserted on the basis of a number of different things not just the idea two thousand and eight was the on sale district court to discern which of those various theories and which of those various facts you were referring to in your game all well during during the during the discussion of the jury and stuff instructions the the prior art had been used as a as a term of art to to encompass simply anticipation obviousness are obvious in this case was a very quick kind of add on to add to our anticipation and that was the way that the term him the court never made a comment about it at the time the motion was made the other side never made a comment about it at the time the motion was made and even later after we filed our our fifty p motion the other side didn't raise the issue there really was no clear but again regardless of whether whether we preserve our ability to get judgment as a matter of law we would still be entitled to a new trial if we can establish as as i believe we have that subpoena and obviously no not at all because we would we would still be seeking a new trial on on both of those grounds let me ask you a different question on the obviousness issue which you haven't really addressed there's a question in my mind as to whether obvious this is really in this case it was a question in the trial judge's mind did you but did you argue the case in the that's under tab sixteen in the appendix and then it's true that the district court initially said that we had never argued obviousness in our closing but in fact we did and we explained to the court where that is i can't remember the patented invention is and indeed what an invention is and what a computerized vention is other than that they would have the case right or wrong on everything else as we pointed out in our opposition brief but but this is something that is so focused on demand an idea is literally the first step of an invention i get an idea i had an idea on the way to the courthouse today that i was going to create a new car gasoline engine car controlled by a computer one hundred miles a gallon i sold the car i contract it for i gave a delivery date i had a price i had no idea how i'm going to do  go with all this is where i'm going with all this space that this whole process started in the summer of one nine hundred eighty seven with the development contractor johnson testified that he was contacted by case they wanted to know what he would do to sell parts so they made a proposal there was a written development contract that contract is not in the record mr johnson didn't have it his company former company fire pond didn't have it  this company hyundai never took any discovery in the district court they didn't subpoena case to see if they had it they didn't contact any of the people that worked in case with mr johnson to develop this step of the patent invention and they have categorized what happens in what happened in the summer of eighty seven and the read me first manual they say that's an idea they say this invention is simple it's for manual steps they don't understand and they say that the judge misstep the embodiment the software embodied men that was ultimately commercialized that he that the judge confused that with the patent invention you can't separate the software from the invention this was a computerized method you have to have software to have the method mr pr electronics parts catalog which was what the prior art had where you go in fact i think our expert testified you go into a parts counter you say i got a dent my bumper i want a new bumper and the guy looks through the catalog and then he turns the catalog to you or turns a screen to you and says ok is this the bumper that's where that electronic or catalog stops this this system puts together a proposal and the proposal as price information that is intended to be conveyed to a consumer that was not part of the id be two thousand system that was described by the president of bell and howell in his article exhibit one thirty one as a gain with the i v beyond two thousand and can only enhance your image with your customers it goes on to say when they see this system in your place and when they see the results they are impressed when they see the results  customer would say yes don't tell me the price wouldn't it follow that system that somebody would say oh and the price is x dollars but that's not the system generating it that's the man going to a separate price list prices change all the time he goes to a separate price list and gives you the price so your system included the price our system including a proposal intended i'm not it says it is it prompts the price that's page eight two four three two the i d b two thousand had the invoice price and the customer price and the thing that was put on the promotional video and shown to the jury it was one hundred percent markup on that price that's not shown to the customer gump said you don't show that to a customer what would that one job produce mean at that point in time to put me wis i want to charge you twice what i paid for it i know i've i generally walk out i try to get the thing somewhere else that's not it's not intended to be used that way indeed many of those exhibits including the frye article and the parts of vision documents and autos testimony talked about this system had to be combined with and invoic system and an inventory system in order to have a sale system that this that the product itself the id b two thousand and self was not a sales system what does that have to do with the claims because the claims don't relate to any of those things do invoicing or a sale system or any of that will they do it's a computerized method for selling and the last step is to generate the proposal which is here's the part and here's your price and sign on the bottom was obvious  not really because their expert klausner testified repeatedly that id be two thousand and to suppose that the differences between i d b two thousand and cloying one and that this had been done before so all all of this i think there was actually one reference where he talked about well it would be obvious and individual an ordinary person of skill in the art which you never the jury instructions defined ordinary skill in the art and had many other references that made it crystal clear that those instructions out the as a whole would take what one of ordinary skill in the yard knew his knowledge of the art could be added to the prior or to come up with the invention so their argument now appeal is that the judge is basically saying you can only have obviousness when you're combining prior art items and that's not the thrust of the jury instructions as a whole i mean i i can read was that they showed wholesale or invoice price which was not something that was intended to be conveyed to a customer was not something that you put into a proposal so they didn't is that there's no evidence that that was shown to the customer that member this is supposedly a back room system used for the parts manager it's a look up catalogue and that and that's where it ended in the g m system which is what first got this there wasn't even any price information tire general motors system i think there were ten thousand fifty a moat and i take it your view is the fifty eight load was inadequate and they did not preserve j ball under their fifty be motions as assuming that to be the case what's the consequence for this court to review as you state you said it better than i could ever say of when their motion was simply you've heard the stuff because that's what it was i say say i said let's not argue that issue let's assume that you are correct in their fifty's emotion fail what's the consequences for that you view the consequence for your view is the new trial standard and in the fifth circuit they are said you have to have a quote absolute absence of evidence that it is a very high threshold that they have to show to have a new trial evidence with issue would would remain the filing date issue would remain but the on sale or issue the judge really weigh that evidence that shows  has an equitable conduct opinion and the jury obviously weigh the evidence there wasn't any evidence that this thing was ready for patenting i mean the way you prove ready for patenting is what was the functionality of it on a particular date i'm going to talk i'm going to take the deposition of the people who were involved with this what was the status of this what was done what were the changes no testimony on that whatsoever you had testimony of a system in place that the inventor says was not complete was not operational that's that that's the evidence you have there's no way shape or form that hyundai met the clear and convincing standard to show this was ready for that meant the read me first manual you know what mr klausner said why that's ready for patent because he misread that manual that minor was a pretty cocky manual under confidentiality water he read part of that manual as saying that the disks containing the software were shipped past tense and based on not being i think it was actually quote was shipped and he was questioned on that on cross and he said that's why it was ready for patenting of that it was a proposed kind of manual it was an synopsis it was an overview it was not by any way shape or form a disclosure detailed enough for one of ordinary skill in the art to make that invention there were there were no flow charts there was just simply a couple of functionalities that were set forth and most of the of the text in the manual was something you'd have in any system you want to print what's on the screen press the print button here's how you install the floppy disk things you know monday and things like that there wasn't any testimony that that was sufficient disclosure to one of ordinary skill only art to make this invention the robotics case says you have have to in enabling disclosure before something can be is presented to the customer that's the final step that is a specific step of the claim the final step of the claim that wasn't in the prior art that the you're saying it has to be a competitive price well i'm saying it has to be a price that you intend to show to the customer and you don't show the envoy's price for a port and then say to the customer this part cost me ten dollars but i'm going to have to charge you twenty dollars you don't you don't do that so it's not whether the price was competitive or not it's that it was a price intended to be conveyed to the wholesale price is eight dollars so i mean i don't know that india would want to do that but the claim to us for closing there was testimony i believe mr gump testified he was asked that question  proposal that is intended to be conveyed in the evidence was that you don't convey it three hundred percent or one percent mark up to a customer putting all this aside and being very charitable hyundai's position on anticipation the evidence about id be two thousand was conflicting on the one hand you have fry who is chairman of the company in charge of  overall development contributing technically to the project he says electronics parts catalog a backup a back room system you have the contract it's in the pen it's exhibit one thirty eight it's the contract on did with chrysler for their system and it says an electronics part catalog capable of this playing an image from the parts catalog that's what that's what it so there was conflicting evidence and any evidence involving customer service was simply that this thing worked really fast and enabled the parts person to locate the part we correct what i'm trying to find out is what's the most significant you think the trial may yet titles you to any remedy at all for about well i think in terms of the of its potential effect on the law and future litigation the filing date errors that is the most significant do you want us to correct a lot rather than win that case well that would entitle us to a new trial at a minimum you know as as between on sale bar in anticipation i think there i think they're both equally strong is grounds for for reversing the the nice thing about the on sale bar issue is that you don't even have to reach the rave waiver question in order to invalidate the patent on that his cross examination on that appears at ages eleven fifty to fifty one and our counsels closing argument on obviousness appears at page sixteen sixty eight let me first address  the proposal issue and the price element with respect to the anticipation argument arayans entire strategy for defeating anticipation was this distinction between resale retail and wholesale prices and that distinction doesn't work for three independent reasons number one they put on no evidence at all that the i d b two thousand system did not teach that element of the of the patent there their entire case was based on attorney argue number two mr gump who was who was the steward of the i d b two thousand system for bell and howell testified without contradiction that the wholesale price could be suppressed in the i d p two thousand system in that you didn't have even have to show the hot the wholesale price and that's it page ten fifty five of the appendix and third as as construed by the district court the proposal element doesn't require that all price information be shown to the customer all it's all a proposal is is simply information that's intended for conveyance to the customer it doesn't specify the manner or the form in which that information is conveyed it can be conveyed orally there's no requirement that you turn the computer screen towards the customer and no requirement to claim that you print out a specific proposal that shows all the prices all it requires is that some information some price information if we're talking about claims seven is intended for conveyance to the customer and in that regard it's a lot like this court's decision in the x or gen case earlier this year in which the court held that the fact that a piece of prior art does something in addition to what to the what the patent claims require doesn't