honor may please the court the district court summary judgment of not infringement should be vacated because it's based on an incorrect claim construction and it's just your court summary judgment of obviousness should be reversed because of the existence of prosecution history that the just of there was a division made of the and the patent owner selected one in body  go forward and that was the one that has the sea long gated language and it does that mean that this particular aspect of the prosecution history deserves a little extra attention we w you can consider it but we had to make the did absolutely does not show this claim should be limited to elongate in stabilizers and the reason why it has you have to look at the election requirement made by the examiner and there were four different figures there was well there's receiver is attached to the stabilizer not based on the stabilizer shape and i'm going to tell you why that so first of all if you look at column two lines sixty eight you'll see that figures one a and b are described as using a cushion for cash to receive a column for lines two through five so your two has described using current members that surround the receiver for figure to be which is described as a column for lines fourteen through seventeen is described as using curve members engage holes in the receiver and then finally for the last species figure to see there's it's described as having an end of t stabilizer is the fact that other nonelected species have elongated supporting members for example if you look at a figure to see which is on page thirty  same shape the specifications size and the embodiments of figures to say to be the support arch fifty five provide support for the conscious stabilizer pack those two species have the exact same element described as being their stabilizer shape so of course it can't be the stabilizer shape that was the basis for the election instead the basis for the election is how the receiver attaches to the stabilizer that is the difference between the species so that there's no discussion of the prosecution history other than saying you have to make an election and then we make an election based on the figures it doesn't really it's not really clear why the examiner thought an election was necessary or what the basis for the election was i think that in the examiner silence we have to look into terming for ourselves what we think it is and i think i've presented the reasons why one would conclude a reasonable person reviewing this the prosecution history the public w on how the attachment to the receiver and not the shape many of the shapes are the same and then on top of that in order for the prosecution history to allow you to read things into the claim they're supposed to be clear and unambiguous  involved and there is no such thing here now the magistrate judge that seem to think that the parties have agreed to this see long gaited point that the quote from the state from the magistrate judge's opinion is both parties seem to agree that the patent describes a stabilizer in one of vitamin as including a member that's a long gated flexible therefore he says i'm going to say that the longest that portion of the district court's judgment this court should also reverse summary judgment of obviousness of claimed one for the same reason that the district court found no infringement as you know the district held that claim one was not infringed because claim one ahead this is only if if we if we don't reverse on on your first issue that is true we don't even get there well i think that if you i think you have to given consideration i when we read the district court's opinion it looks as if the district hardest thing it doesn't matter in this circumstance what evidence it is of secondary consideration cannot overcome if it uses this not trump a prime a fish a case notion but what confuses me is this is a district court proceeding so we're not dealing with prime offi attention to the gears reference that has these hoops like support elements which are supposed to be confined with libor incommode which cheat sheets for projecting parts and hooks that go into the ear now the district court for sleeper incommode are using a different part of the year the helix to stabilize the receiver right that's absolutely correct your honor this is using the contract not that the upper the crux of the denying summary judgment of infringement on the dimension to language how that exactly what constitutes the upper concha is a disputed question of fact and so for that same reason as i'm not in the district court's opinion on obviousness is really just that everybody knew that we had to get smaller and smaller and there's only so many places in the ear to to use for support so when you i mean when you look at help of leiber is why isn't that a fair enough but i have to remember that leavers receivers outside the ear it's so big that it's outside the ear now when you do shrink it down contra when the receiver is huge and filling the entire concha but when you reduce the receiver size down and you've modified it as the district court suggests is that it's still going to contact the ever contra we would submit no we submit that there's if inference there it should be that it won't and the reason why is because the references don't say anywhere that you actually want to touch the upper conjuror use it to provide the stabilization force and so we w favor going back to gears for a minute the district court assumes that these hoops like support elements were stabilizers when in fact reference doesn't say anything about what they're doing in addition to who played support elements are located outside your can now that's not in the upper concha and third of all the district court relied on speculation in hindsight when it combined these references because  the different references operate based on different principles and based on different locations in the year there's no evidence whatsoever and i would submit the common sense would tell you that ring like support structures are not going to hook into a crux of the h please the court if i might i would like to directly address obviousness let's start with the elongated how do you get a claim construction on something which isn't even in the claim that he waited a clear instance of a lot correct except and this is all i will say about that most of course are the questions except that when the patent examiner said there were four patent complete distinct inventions the applicant chose to go with only one which is in figure one we when we went over that and missed sol explained that the distinction between those four had little to do with the shape of the stabilizer except that someone looking after a file history and seeing that election would be entitled to rely on that with a she'll be entitled to to import a limitation from the specification in this one circumstance i'm fully aware of the rule that you don't ordinarily do that which is why i answered your first question with the word correct but in this circumstance where the patent examiner said there is one application in patent office procedure of course but none whatsoever in a district court is that error in itself no i don't believe it is he's he's quoting this court's wires opinion which itself  says that where there is a strong case of obviousness crime a facia in the sense i would suggest of otherwise that those secondary considerations assumed by him to be true for this purpose were not sufficient to overcome the other factors for obviousness and then he did in a footnote say that he didn't find the showing particularly persuasive and it wasn't if this court looks at mean you're as you're as question suggests he must look at all of those factors to determine whether or not the pattern is obvious so what you're saying is he must have done it since he had to and no i'm saying he said he  everything that plantronics said to be true with respect to secondary considerations they were not sufficient to overcome the need weighing the grand factors he never once said no reasonable jury  large and then direct your attention to the joint statement of undisputed fact you find the foll fourteen fifty five this is a joint statement of undisputed facts you start with twenty which is the devices that utilize the united me of the ear have been around since the  twenty s that is twenty one that achieving a comfortable fit has been a goal for decades before nine hundred ninety four that twenty four and this is the key a person of ordinary skill in the art would be familiar with the trend toward the miniaturization receivers for the for in ear devices so if you this is this is stipulated so off and that's really a reflection or  example of your holdings in leapfrog so if you if you accept this is true as you must because it's the collated you would shrink the receiver and lever so that it seats as lever teaches on the anti trade ignace it is in front of the auditorium canal because that's where you would want the sound to go it contacts the training is because they're exactly opposite of each other so the receiver of the four five three claimed ten years before presents that these two additional elements other places the criner declaration paragraphs eight ten and fifteen which expressly say that those things are present and the question then becomes if it twenty five on the same page runner and this is the key there are only a limited number of anatomical features that any in the ear device can engage if this is so he see yes why didn't forty nine why didn't have was there there are a number of answers that i could you gave us an awful long description there about how the miniature ization was not on the cushion was not on the  front of the ear canal was not and i was saying to myself when you start getting that many things and that many elements and there's a fifteen year gap you are giving me a prescription for hindsight not at all not at all not me why not at all because he'll with all of those the time that the multiplicity of things that are required that you're requiring me to assume everyone would put together and then why didn't that happen if there's this come telling me for it what why wasn't it why if it's so obvious why didn't it i'm not sure there was a compelling need for what you have is the trend and once you shrink it you'll have two things left the question which remains the same well the shrink is ok but that happened the shrinkage happened many years ago not so it was a trend that's all that stated is that there was a trend that that that makes it even more interesting that the trend at what point in the trend becomes small enough to make this obvious when that when  the ear one would in the words of k s r experiment and try the obvious choices but so you're saying in response to judge watson you are saying that at that point given laverick loto anything the matter where they  asked i don't know if the answer is anything but given the very few choices that there were certainly this one was obvious given that we have two references in the record comodo absolutely goes into the upper country so in the few choices that there are for stabilization and to the touch of one of which goes right into the afrikan china there's nothing there's nothing could be more obvious than to try using the opera country and once you do that you've got flamed tent i find this to fly in the face of a little bit of personal experience i've been working out i would have jenner online life and i've been putting things in my ear so i could listen to my rolling stones at the same time and i still haven't found one that stays in my year i'm not sure this is a lobbyist why is it been done i'm not sure that these do either there's no evidence in the records that suggest that all of my client probably wouldn't like me to say that but what we have is not how well it works all we have is whether or not it has claimed tens and given the srong receiver something people are working on and have perfected that why isn't why the fifteen year gap in the i actually have and the answer that goes to the question that you just asked about why why they don't work better there's no evidence to suggest that in that fifteen years and i have twenty years right know but this is nothing in the record that suggests that others have tried and is nothing in the record that suggests that this was an unexpected result there's nothing in the record that suggests that in the fifteen years people were searching for a solution that would work better but the i would direct the court's attention and there are stabilizers that can only use a limited number of anatomical features given that it would not be surprising under the case or cases and others to try putting that stabilize still first of all i want to make sure i'm clear and correct something that i think i may have misstated we do not dispute that obviousness must be addressed regardless of the change in clinton's direction also i just want to point out that the joint statement court statement this is just a prescription for hindsight finally i just want to note that the specification does talk about the advantages of using the upper concha to provide the stabilization force and it talks about having better comfort and better stability and none of that is found in the prior art and lester's and she shrinks something doesn't become harder to stabilize it i think that would be a matter of common sense ye where is that addressed in this record i don't know that i can call anything off the top of my head to specifically address all right thank you very much thank