the issue presented or one of the three shows presented is whether the lower court applied the proper standard for determining whether section one twenty of the patent law controls or was properly applied in this case the lower court this is a this is a case of a parent's utility application followed by a design pattern application the design application claim the priority of the utility pad and put that when the court reviews the prior application that it's limited only to the drawings and the figures are in the application correct court just look to the drugs and my argument was that in cases such as dad kept with it was a design application a look to not only the drawings and for for subtle reasonable modifications of the drawings what this record judge did here was first look at the drawings for one for us to compare those drawings to the patents drawing but then in the alternative also look at the actual t of the four one four utility patent application and searched through the text and ultimately found that the text also didn't provide written description support for certain features of the patent to design isn't that a fair way to understand the opinion the feeling understand it would be that the judge for example at page sixteen of the opinion this is with regard to the six raised triangles on top of the lid even accepting the plaintiff's approach the text of the application cannot save the drawing after searching through the specification and claims the plaintiffs find no text discussing sixth grade triangles that's just one example and then it does a lot of the same things for the other missing features and then ultimately says even accepting the plaintiff's approach on page nineteen of the district court opinion the written description remains insufficient for each from the application of these claims of most enable a person skilled in the art to reasonably determine that the invention was in the possession of the of the inventor at the time of the invention if you look at the drawings of the four one four which is the parent application there is a raised area in the center of the of the lid now it's not claimed but it does show up in the art if they saw the reinforced area in the center of the lid and then viewed the other areas would understand that the inventor really did invent it after an invention and what reinforced their you talking about on the lid of the four one fo african and if you argued this point with this report i'd be interested in seeing that in the now i'm sorry i'm saying that you argued this point to the district court judge below in opposition to your opponent break for some object that that that the lid had some kind of reinforced area and when you look at the illustration one for it would make clear that you would have some appreciation that you need any kind of different shaped reinforcement for example six rays triangles i do not believe that i did  applied to be the apple feet they also applied the spirit if you will that there had to be an exact miss between the drawings of one of the drawings of the other one of the two points as the court said well the drawings of the earlier application shows a angle in the drawings in a later application show that it's rounded the standard would be that a reasonable person skilled in the r would look at what an understand it you invented the other and her position was that the court erred in doing this and all the analysis to court also looked at the rubber vibrational pads at the bonds and said well you didn't show that they're exactly round or you didn't describe that they're around what are some issues description but i think one skilled in europe would other issues as far as today apply the proper infringement standard which was that the court didn't do a claims construction i didn't realize that claims construction and design counts it's very limited and usually you can't reduce a picture to words however this court has said that when you have something that's functional and ornamental next you must in order to find in principle separating out all of those items that are considered functional that is their going to say one twenty is not applicable here and also it doesn't infringe anyway but i think it also aired in that site and again going to your infringement question i didn't see you argue in opposition below  that the court needed to differentiate the functional features from the overall design features and then you would the baton or were in the best position to identify which was that were functional and therefore shouldn't be c oh is it easy the other issue raised was whether the coroner each analysis of the design by looking at an element by element basis rather than looking at substantially the entire device what it does it looked at the corners and said well the corners are sharp the pads are not in the proper place or we can't tell if you look at the whole device and the whole picture that it gave in determining whether there was infringement or not but i think that also separating out the functional aspect have to look for a description of the features also in the text in addition to the to the drawing just says the plaintiff argument is a sky to the written description requirement looks to the drawing to include such a special occasion only to describe the says that the item may have pads doesn't say six bat isn't should never be considered as well because i think the district court here was making a reference she got six pads in the accused assuming it did yes if if i can understand your honour's question if the specification mentioned that it could have any number of pads with that assist the  district court in determining that it would be ok if the later claim invention had more than two pads that's your honest question your honor i did think through that and whether or not  that type of explanation might be helpful and i'm not so sure that that explanation is details enough but i think there are explanations that could have been in the specification that could have been helpful to the district court i agree with your honor but here we didn't have those explanations which is actually the point i was i was getting ready to move to you hit right on where i was going which is if the court was so apply the logic that the appellant tries to apply here the court would be rewarding vagueness and applications in the decision that was one of the district or told so what the district court is saying here if you agree with spencer's argument and that's not what the what the case law says as i mention in toronto and power a c s this court has found that obviousness is not the test so i think that's where i fax where the court was going when it said that the did think through this because i was trying to think intellectually as to what what might have been if things had been different and i'm still not certain that that one comment that it could be  depends on the detail would say the illustrations and you would have to also look at the later point invention and determine whether or not well is it hexagon is there an example of the description through tax that would make you comfortable the text sufficiently described ornamental feature i think we'd have to go through the ornament features that the court pointed out i mean there are cases out there where and this is where we get into the dimension in cases where you have dimensions where the court has found that the dimension and there were no dimensions and in the four or four illustrations but if this were a case that involved ranges or dimensions if the if the earlier specification gave some indication as to dimensions that maybe didn't get the sack to mention and then the later claimed invention gives a detail description of the measurement then that is something that that might help support in determining that the later plane mentioned the plane priority but this is not this is not that type of a case so that's part of the problem i think is that that spencers three below and the bridge before this court are mixing cases about utility patents measurements ranges pharmaceutical cases all sorts of different cases that just don't apply to a game canister and the earlier application was the egyptian goddess case from this court mention that there's no need for the district court to provide a detailed verbal description of the claim design as your honor pointed out spencer was in the best position to present to the provide some kind of detailed verbal description of the claimed design right yes wrong so why put law where that is when it comes to design infringement there is no need to provide some kind of or articulation of the claim design for purposes of infringed but it is required for purposes of political and i think there are certain instances and that's where the richardson case comes in where the court my find it useful to construe the patent is on here that wasn't the case and in fact spencer had argued below that none of the features were functional so the court there's you assume that it's valid for purposes infringement so that the district court does she don't have to construe the patent for purposes of validity when you're doing an infringement analysis and here spencer smallest differences and even if even if you the court would have stripped down the functional features that now for the first time spencer's claiming are functional those three of the three of us for what he claims  and the paddles those those actually the court found that those were very similar between the four seven four and the i don't want for the ordinary observer would not even paid attention  of those ornamental features were dictated by any of the function below the well he claimed that they were for infringement he claimed that they were not functional ornamental designs were not were not dictated by the function and so the core compared and found as a whole despite spencer's argument found as a whole that there was no infringement the example argument to the court was while there quote while there's not been any determination by the court as to what is considered functional or what is to be considered ornamental one is left without its understanding of what is to be considered infringement analysis as as far spencer claiming that all things are functional i don't believe that's the case i believe the first issue of functionality was brought up by posing counsel in his  we were both in agreement as to things that are functional he said all where we said well some of them so we were again it was opposing counsel some of the issues the clear six sided class or plastic at the last issue is that i would say in listening to this hearing proper procedure what appears what it was plain to me is that the federal circuit has given fourth opinions and as far as infringement you have to look at the the item and the year for accused of ice in the pan and you have to see if there's a substantial similarity these are words that have huge amounts of what's referred to in the to be no such thing as the design pattern because it would be very easy to overcome just by changing the law but when it comes to written description doesn't the court case law talk about how obvious variations don't don't satisfy the written description of  nevertheless under written description law the the parent application necessarily has to have the disclosure for all the features of the later claimed patent and it can't just be an obvious variation well you're going to obviousness and since yeah i am but it's a notion that's in the written description no i don't understand your point but what the point i was going to make is that when you're dealing with obviousness you have to look at the underpinnings as to well it's obvious because it solves this problem or this is one of the issues raised with just changing it especially the conflicts in time past i mean how obvious it is to quit your name on a football and yet there's which is kind of had these funny legs that were shaped in an odd configuration but the seat had changed from the parent application to the later files african nation from a square c to a round seat and then the case that's accurate description of the case what i was referring to was in the parent application it was round in the to the issue the application or the application issue it's romp in the prior saga so it's around this was a new development or a new issue where do aspect if you a limitation of the parent and the new limitation of the of not in your case they had a round stall or square and then they filed another application and they said well this taught me other than round square it doesn't matter that's where there's a direct parent and this subsequent design application it was around now the issue is does obviousness come in and my argument would be that it wouldn't because there are no there's no  for making the change from a hexagonal shape candle to around one that would be obvious to one of the engineers to solve a problem but i think that's part of the underpinnings as you have to address why one would do that all of the ts