responded and i suspect that the court kind of grasp on some of the straight language in that case our opinion and reproduced it in the district court in that were appealing from and to the extent that they did so i think that's  position on this issue in our to our position on this issue the question isn't whether the court found that there was a predictable variation that could have been implemented the issue is that the predictable variation is taken from the case our case and in the context of the case our case the supreme court makes reference to the consideration of functional characteristics of the prior art there that references their being combined in order to determine whether or not there is a variation of predictable variation and that just has no application makes no sense at all of a sign that a case where the protection extends only the ornament features and not to any of the function now in fact if you have primary functionality in a design feature it can be the subject of design patent protection so our position is it makes no sense at all to give credibility to design function or to functionality parts functional parts of one we're appealing from the district court pulled language out of case are and when you look at the case our opinion in the context in which that language was used the supreme court says that part of that analysis part of the predictable variation analysis is to substantial question before the trial judge sufficient to allow the judge to exercise discretion in denying you a preliminary injunction  that's an enormous so the show to get over and i'm really puzzled i'll be candid with you i'm puzzled why you're here because come back to the standard of review i may have misunderstood the standard or review question which is the one judge they are so open to debate with or the discussion with the standard view is abusive discretion isn't it and earlier on this business with regard to  did the question we don't we view pinioned we reviewed judge the judgment in this case was the trial judge said i'm not going to grant you a collimator injunction because  substantial question as to whether this lug had right is obvious or not in light of the prior art and the judge looked at the various designs and the obviousness issues so that the parties know what is might be challenged and so that this court the appellate court knows what internal reasoning was applied to understand whether it was proper and if there's no sound reason if there's no support if there's no comparison between the part that defendants in this case threw in twenty odd references never identified anything as a primary reference never never provided any of the you can but i think there's one in the evidence in this case i don't think there is a single reference that meets the durlan apartment that that it present ornamental characteristics are basically the same as those that are protected by the six to  we have said here and there that no you don't you can avoid a preliminary injunction simply by showing that this isn't a rule eleven defense you've raised an adequate question understand i have to show that the which we did but you have to show is not by a preponderance of evidence that it's invalid but that you've raised the question again as substantial questions you find i think  companies but it's a question of what issues are truly before you in the finding of fact that he made below that case in all of it had nothing to do with this tar it was only connection to the tire as it was the sole member judge i would suggest you don't even have to go that far all you have to show is that the trial judge did not abused his discretion in thinking that there was a substantial question r anybody did they try to prove that  to this case and that you don't have to be or nothing would apply against you and a way and that even if some other party is enjoying your car i can continue to sell infringing tires if they're in join because the trial judge said more likely than not they'll be found infringing because i don't believe you should reach these issues that they would like you to reach on how cases are impacts obvious opinion to curious product and the picture in the design patent you can't tell them apart so from that you find that makes it pretty easy you don't have to worry about equivalency of design and also when you look at all of the pictures of the prior art if we're talking about pictures none are exactly the same if that is the old law of design pattern prevails we might have a much simpler case but the trial judge was obviously taken with what the supreme court seems to been trying to do in k s shall we say tighten some of the standards more in the direction judge accused product looks i looked at it carefully i was going to say to my i am not used to evaluating tire trades but i can see the difference between yes i agree with that the substantial where we are at this stage of the preliminary injunction stage i really do need to have a clear view of your position first you tell us you shouldn't be there some of your car shouldn't be there aspect as we don't need to reach that point where ever if we agree there's a substantial question on the obviousness side correct you don't need to reach that issue i would submit you don't even need to bridge this issue of substantial ok thank you tallied by the court which is the arrangement or placement of the logs around the tire her affidavit is silent on that and the court found a fad a factual finding that was one of the points of novelty of the tire and also one of the the district court relied quite a bit on the ph d technologies case and in fact quoted directly from it saying when there are several ways to achieve the function of an article of manufacture the design of the article is more likely to serve a primarily ornamental purpose and i would remind the court again that the defendants put in twenty odd references tires that they claim teach various combinations of the design aspects that  need to be combined together by somebody in order to make obvious the plaintiff's design patent all of those tires are functional they are all out being sold or have been sold some point in time out in the world and