parky smith and this is my first time before the court it's a great honor and i thank you for having me welcome but this is appeal from a decision in a design patent case where the district court granted summary judgment of not infringement based on the application of the point of knowledge to the test and we view this appeal in light of the court's recent decision and egyptian goddess where as the court knows  the part of novelty test was put to sought what has remained unchanged i submit after the egyptian goddess case is that the purpose of protection and design cases remain the same i mean the point of the test as articulated by the court is and has always been to determine whether a claim design has been appropriated as a whole and the court of course has used a variety of articulation some of the ordinary observe test and most recently the one egyptian goddess but it's always been the case it's like variations are not going to destroy substantial similarity of identity and in fact question what has changed that the court has pushed aside the point of novelty test and the district court specifically found that there was fission similarity in the accused design and the patent design such that there was a question of fact precluding summary judgment is not infringement on the ordinary observer test of course articulated before play gyptian got us but graded summary judgment on the point in novelty tests and also construed lawman to state that you can't have a unique combination of design elements where all of those elements also constitute the entirety of the design and i think that gyptian goddess has in addition to pushing aside the point in awe of the test also given some clarity in connection with that concept and i do not believe it is the law especially after just egyptian goddess that a combination of elements even if they are all old and in most in person but here what we have in there is a bit of dispute about this is soft shades which cover the package which have to be attended to in order for that to drape in a specific part of the of the plane design which is really important to this is the shape not only of the bottom falls but also of the rod pocket and the fact that the rod pocket in the end the bottom are mirror images of one another and so particularly in connection with that get back to your point when you're when you take into consideration the alleged prior art and i've seen the at least some versions of this p with the prior art and i think in a case like this one to the extent it's possible actually observing you know the invited prior art particularly where there's a dispute whether it's really prior art or not all of the pictures that you from reading the egyptian gods cases that the court adopted the analysis that it did inside shines a light on why in this particular case that position of the defendant  a court said it was getting away from the party not only test because it wanted to get away from giving defendants more opportunities argue and design does not infringe because it doesn't copy all of the points are valid even though the overall design is substantially similar and also it also wasn't it in the new test is not present a risk of assigning exaggerated importance to small differences that don't make an impact on the overall similarity of the products and that's exactly what's happening in in the case here before it i mean what we've got is a number of things that the defendant has pointed to like some stitching same colored stitching some slats which are in fact functional elements probably possible in some cases but i don't think it's possible in this case at all i mean we made the summary judgement across motion as the other side of an egyptian goddess wasn't there was going to just come down and there was certainly some confusion in the district court about long and at least you there was i think all of the things that the judge why down below in fact i have been done away with inches in egyptian goddess in particular this piecemeal concept because an injection guys the court did say the new test rearticulated test odd does away with the dangers up and the concept that you have to worry about whether it's the entirety of the design whether it's a subset in the design you know you don't need to deal with that anymore if you properly applied the test has been articulated by this court on top i do think in our case that summary judgement it remit is required and somebody judgement is inappropriate in particular there is some discovery needed with motion to dismiss this appeal which was based on federal help for it to cannot be squared with the supreme court's decision first your mortgage which is a four ninety eight us two six nine i would like to address the these various designs and stuff isn't it just isn't be careful appropriate thing to send back and let the judge apply egyptian goddess test only while we're back if i may or we have provided of these facts your honor with the exception of egyptian gods but the facts and law enforcement this exhibit were before the district court the photographs in the lower left hand portion of this exhibit are photographs of the hughes design these can be found in part it got us this court found no remit necessary and affirmed an entry of summary judgment on alternate grounds egyptian god and bought was the beginning of the ordinary observer test as we now know the district court had not had an one side doesn't in the accused squeeze a buffer or four sides have buffet that's the only difference in that case now the court also found that the accused design was close to the prior  ok absolutely and if you look at your notebooks exhibit a prime tells you exactly where the record each of these figures comes from now i  that this art is anything bought clothes and crowd are extremely close to the priority the questions that mr paul has raised its morning about whether or not some of these references are indeed prior art we submitted in support of our summary judgment motion chapter and verse the references that he's saying are or are questionable as prior art r v prior art and they have no less of record all they have is the declaration of linda johnson smith which simply asks a question that says i'm not sure that these commercial products record that the order years prior and i submit that no rare observer and no drew are possibly conclude that the artist anything but close and proud if there were a genuine issue as to that then certainly it would narrow that's this coarse language quoting from lydon and applied arts if the close you are construed very narrowly they cannot possibly cover the accused design reason being the party or just to the right of the six difference between that piece of prior art which is in essence a dead nuts anticipation of the flame design is that it has a weight bar and a partial skirt that folds over at the bottom of the shape so does the accused design as you can see in a thirty two sixty three in our exhibit on if you try to cover the accused design with these patterns you cover the prior art egyptian goddess of that's an impermissible effort to encompass an overreach by claiming the prior art and this is all theory as a matter of all are sufficiently visible sufficiently distinctive that no rare observer could possibly confuse them with the claimed design or possibly conclude that the claim design as a whole has been misappropriated the clay design as a whole here includes as a fundamental aspect of it that it is plain ornamented and flat the accused designer is anything but plain on  to say that they there could be a genuine dispute here that that the huge design has permeated the clay design i think essentially defies the physical reality of this case nor of discovery can change the facts of court did not need an egyptian goddess even in the face of conflicting expert testimony and there were conflicting expert declarations one saying there could be confusion one saying there could not be confusion and based on the physical m as to subject better jurisdiction that not file a notice of appeal naming this court within thirty days of either of the non final orders to try to appeal from the march sixth summary judgment decision or the watch ten judge neither which was whether in this case and third contrary to this court's ruling on june nineteenth the premature notice of appeal filed by part b smith did not write in to an effect of appeal upon entry of the may sixth or under the supreme court's decision and first your mortgage and this court's decisions in the instruments and stony point products under those cases will florrie to does not apply to this case at all but that was the basis for this court's denial of our motion to dismiss claims counter claims cost claims in the case and the only act left to be done is the entry of a separate piece of paper called just and that's just not the case  this appeal outright for lack of subject matter jurisdiction thank you all make and then if there's no questions also that what is the court specifically found below that those flats while they they you know could be seen on the photographs could be factional and outside the design and indeed they are optional there but hold the this blind from closing up obvious self when it's put on a bar ah same is true with respect to the weight bars i mean they're there to hold down the bottom of the shade these are all questions that have to be included in the analysis by the district court when it when it does the ordinary observer test there is one thing i would like to point him mr sulzer made  point that the country curtains supposedly prior art is is something that is uncontroversial fact that's not the case at all indeed there was an essay did from did say it was being appealed to the second circuit we briefed that issue and that appeal where the case was supports the proposition this was not the basis for the court's original ruling but the case law supports the proposition that where there is only one court to which an appeal can be take it a misstatement of that court in those of appeal is not jurisdictional we've submitted that our paper suite some of the battered original document was entirely improper peeta there was a an amended notice of appeal that was filed with the correct court at the direction of the district court clerk who told us not to make a motion to transfer to this court from the second circuit  was submitted to this court in connection with those documents i also believe that the court not only correctly with respect to the original motion but there was a motion for the argument that was like was denied on this issue and so we've totally filed notices of appeal i do agree with the court that the most of the people did right and i do not agree that is not an appropriate rule for a situation of an article in the papers any regard to that i can't speak to that the case of first year mortgage i haven't read it i mean i haven't read it recently and i can't speak to it as we stand before the court unfortunately i apologize but i did not think we would be going into depth at the jurisdictional point