obviousness is a question of law but it depends on underlying facts and here the record shows there are material actual disputes that precluded summary judgment what we're asking this court to do is allow us declarations it was interesting because the court said they were presented in a conclusion fashion i believe with the district court of getting out your honor was that the briefing was very short not that the declarations themselves were conclusory the declarations actually have a fair amount of detail carrots are and try mid decision of the federal circuit make clear that when we're talking about whether there's an apparent reason to combine two of the core fact questions are the following whether there's a trend in the relevant design community at the time of invention is a fact issue and that's for the fact finder is there a trend in the relevant design community another one is what's the background knowledge of one of skill in the art what was going on at the time and here we have for the clarence for the clarence presented to the district court that said the trend in the relevant design community was going away away from venting of a disinfectant cap that was the trend i don't remember all of the details i thought that that put aside i guess mr wanna tell one says that his his declaration for a minute that the other ones were pretty clearly about something different not about cats b actually on point at the other three are about a sufficiently different situation keeping a line which fluid is going to be flowing  that's not what this is in which case one can't put it all together one would have to rely on the sufficiency of mr wattles assertion alone to tell me everything that's wrong with what i just described earlier and i guess we want to stay in the world of apples and apples if we're going to say that the pertinent artist won because that's a disinfecting cap that has a sponge in it and that that the that the art that we're talking about here then in the course question is all right well what if we were to narrow the concentric circle down to just this effect in caps like one then we would say understood that's that's what we do then we would look to white and white is a fluid seal that's also tight nothing to do with the disinfectant cap so the point for the court is if the court was going to have a narrow definition of what is the relevant part then the court of point is well taken your honor that we have won and we have lensing talking can be tested it is evidence that if somebody wanted to fit a catheter cap that they would of looked to the combination of completely different purpose chinoy has a torturous pathway where you inject after inside a machine you don't want to inject fluid inside a medical tap into the capital that actually the opposite of what you want to do and so we say mr one thing that one thing and also and our point is if the convention as from four witnesses is you don't want venting you want to type deal understanding reviewing the evidence in light most favorable to us that's where we are convinced summary judgment and it's a clear and convincing evidence standard then the question is all right what if you have chinoy and we're saying chinoy in there channel a pathway they go from the interior to housing to the ex to the cap so they're not they're not talking about trying to help out with the your honor and it is the pressure pressure that occurs during the process of putting the cap on or is there pressure built up even once the cap is off that feed is pressure putting the cap on create the pressure and then you have to deal with that so i mean you had is it mr rogers is that than you have said something quite like this was a known problem your honor the person of ordinary skill in the art if you if you are trying to figure what was happening what was happening as people were saying that i understand it's still looking like most terrible is the design community saying we want a food type deal and they're not having success it's been twenty years i haven't been any major success in the field n separate from one sort of motivation to combine a piece of logic if it were was true that there was a known problem of pressure w kept and therefore a skilled artist would have been motivated to look for a way to relieve that pressure using it can why isn't there a motivation to vet it or thank you and i'm sorry if we look at whether it was a known problem a pressure in the cap it's not the case that the prior art is identifying the known pressure this non problem so we're not looking at prior art and saying we're not in a situation where the pirates screaming out there's this pressure problem what are we going to do about that's not where we are going or where we are as a person or any skill you are aware that this is this has been working for years i don't mean to suggest this is going ahead i'm just saying that's what the situation was so we're not in a situation where the deal and we have that in the record that you could make the cap bigger on the inside and then that you could also have a certain type of material there are other things you can do and what our point was we want to go to the jury and argue that because chinoy has nothing to do with this art and is not helpful and because white is a fluid type feel so white it's not at all helpful that a person of ordinary skin the art would have no where to look no answer to find and so that person would do the other options that we less camps on the market that were being used for that were tried and failed because obviously your product i gather the evidence is at least clear enough for tribal issue on the commercial success of the product and the question is what's it attributable bowl to and it might matter whether it's being compared to no caps versus atlas caps and so i wanted to know what was the state of their record about the state of the world with respect to the scans i believe your honor that there was some evidence in the record that there had been some apps that had not succeeded there's a venture called mina hey i think  i'm getting it wrong so that again i'm in a hey i think the invention i can get the spelling right but there was some prior art that was that didn't have a vent and nothing had been commercially successful and you're out of where we are in terms of moving on to f f we get past the fact that there's a raging debate about the state of knowledge of a person born a skill in the art which we've just talked about briefly where we're saying the state of knowledge of person art was to go against venting in favor of a food type deal me afford to clarence on that the next point is there's a raging fight about what does the reference teach which is a fact issue that's should go to the jury and we disagree with each other about what teaches and what chinmoy teaches and there's a raging fight about what the function of chinoy is relevant or not so there's all these raging factual disputes that the district court results against us even though it's summary judgment when you get to secondary factors as a check on hindsight it's clear that we are in danger of hindsight here your honor and the reason we're in danger of hindsight is that this commercial product that has been venting and has everything else so the full breath of the invention the claims product of every single feature of the claims photographic went from zero to three hundred thousand to ten million to one hundred million in the first two years because it revolutionized how things were done in hospitals revolution and to point your honest question there's no evidence in the record that there was a successful you know very successful product that preceded it it was it was really one of the cutting edge products whatever had happened before ha failed and under this court's precedent if we can come forward and say we have we have an inventive product and it falls within the claim then that creates a presumption that it's based on the product in other words the patent holder to come forward with affirmative evidence of what the success is attributable to but at least like the tokay case points in the opposite direction if i ma product is constant with the claim features then the burden shifts the defendant over that's a well cited proposition it's not one case that we kind of found in an attic somewhere it's a wealthy the proposition that if a marketable product in bodies all the clean features of the invention and  product is coextensive with the claim features the branches to defend it but just around to what i do want to point out is in this case the other side is not arguing nexus in other words they're not saying we want to tell the court what the evidence is of what the alternative explanation is for this product this exciting invention that revolutionized what happened in hopital infections went down eighty five percent that's a unexpected result eighty five percent in one study this in the record based on this invention of blood infections the reduction in blood infections eighty five percent and this has been going on for twenty years that they've been studying what to do they try kept out they tried they tried another pick fights whopping that wasn't working when this invention came unexpected results and you're on it to your point nowhere do they come forward and say i know that was for twenty years they're having problems and i know literally people are dying and i know after this product came out there's an eighty five percent reduction in one study which is in the record and i know that this went from zero to a hundred million in a few years and basically has revolutionized the the care of people and help you with infections you wouldn't kind of expect their declarations can i just make this point that on summary judgment is what i thought that they were contests they should be saying that you're on it but they should be saying in the light most favorable all that's true they should not be contesting what i just said is on the record and we get the entitlement of the light most favorable to us on summary judgment so they should be saying that's all true for purposes of summary judgment but then they add this we have another explanation and it's this and then  it anybody tries to put a bit of cat on the market even there was enough to see that after ten uses it was a bad idea there was one but it was kept that was marketed several years before that it had talk about a fluid tight seal the fluid tight seal is important on the end of the valve that's on the end of the catheter the fluid tight seal on the cap is not the issue with a cactus and clips or whether it has event there still will be a fluid tight seal on the vast even before caps for use the valves just stuck out of your arm it was a fluid height seal and so this desire to have a fluid tight seal is th points out that the in the hong device from the hong patent to the extent there is a seal the seal is if you will a faint seal the threads are not with the sealing device the threads are not  so the the hong device for any of the caps when you print them down there will be a seal on the face but not on them the threa on go to a cleaning device for a medical implement they're much broader than that the title of the patent is a clean device for medicare in fact the specification describes medical implements as any tool or yes there was the term ventus not actually appear in the client it's called second opening means or opening and the judge determined that that means a vest right where you just re to try to understand your argument about the breadth physically the the claims refer to a cleaning device for a medical implement and then they go on to describe the cleaning device has various features including a first opening and the second opening in making in the various making their argument about the prior art they're trying to very very narrowly focused on caps for lore activated valves with considering the secondary considerations that the breadth of comparison should have included all of these other medical devices and i was speaking more specifically about the basic obviousness issue not getting into the secondary consideration on secondary considerations our argument is that the comparison is not with any of the prior art the comparison that they're making the comparison that they will ion is with regard to the impression that there were caps to be compared with that were the same but for the second openings for examples the comparison was interesting and if salad quite word that we're told is shown by these agents that are trying to understand the contrary argument because you know we have a fair number of cases which direct the decision maker to look and see second opening me where you are conscious it's true that they are thought dependent but the statute requires that the invention is the whole they considered yes your own and the even invention as a whole i very fancy make any connection between the invention as a whole and the commercial set of the unexpected results but i don't understand this argument no are you saying that  with regard to secondary considerations and i verify relies on so called expert reports submitted to expert reports and relies on a number of other  declarations what i've heard fails to point out is that it devoted one sentence and entire summary judgment brief to the issue of secondary consideration and that sentence was simply look to these two expert reports say that the district court did not have to look at the depression's because counsel for to them and once a watch will know you are there there's two issues there they're expert reports and there are declarations there are several declarations that were they're part of the record of a yes and as far as i can tell you did not object to them when they when they were introduced into the record when they were introduced into the record that's correct ah so you're stuck with yes the record there's a clear showing of obvious and no matter what is said in those declarations we recognize that they're part of the record and we're not you know pointing them out that they're not it's not enough to overcome the clear showing them obvious or declarations and they all go to the issue of motivation it's part of the promise they should k c s it's just one of the many things that are considered as part of that case enough for something to be in the records it actually has to have been relied on the opponent of summary judgment in the summary judgment opposition and that was not done here seven argument and you're right three we did make an argument yes you found that they should not be relied upon as part of the you now says next that is in replays of a court case where there was a four day difference here we have six months different from the time that of that record with respect motivation to combine i now want to switch to secondary factors and judge toronto i was trying to find them in a but i can't find it i will just cite that in the record at a just spell that word the end of the answer is no that i can find  three or three it talks about mr buckman scap and taking the court's point that it's not directly about a medical at but as close to the phrase there is dr buck in the cap was never commercialized because it's extremely complex design and resulting high maintenance costs and that's one of the references that they talk about in the briefing so it's close your honor and then finally this is very important in terms of right before the court that the court referred to in the decision so this was argued at the summary judgment and in the decision there's two reports lensing and then also kennedy kennedy at a five six five eight goes through the sales and talks about how it goes from zero to three hundred thousand to ten million two hundred million so that sales of the claim dimension are in the record right before the court argued at the summary judgment hearing in the briefing and cited that's there's no issue about whether that was cited to the district court and then lending at page five six to two and five six two three discusses long felt need in detail and unexpected results in detail so we're not in a situation where we're lost without the earlier declaration mr rogers in a situation where even setting aside the mr rogers declaration that was in the record and we think should be relied on we had the core information when you look at all that unlike most people that we believe it means that under the proper precedent this for we should have a chance to have a jury find all these disputed facts and not have the court throw the case