she who is a member of the bar in good standing in the united states district court central district of california i have knowledge of her credentials and i'm satisfied that she's possessed of the necessary qualifications and i just want to add on a personal note that these are very bittersweet occasions for me and that is particularly the case with the current mess particularly since she has resisted our temptation to stay in washington and be with us and i going back to her hometown and she's in california and i first of all just state the obvious for all of you which is no ma'am which is she's really raised the bar in our chambers with respect to her style and her grace and will try to live up to her standards in the p j r and just professionally and personally i want to say what a great honor and pleasure it's been to have spent the past year with men and to have the benefit of her strong into left and her talents and her skills and she will be still are sorely missed although i the i'm very comfortable with that on her enormous bar so i second the motion well i would have liked to quiz you on prosecution history as gospel the course we grant this motion with great pleasure mean that least you can tell me why i'm wrong or if i'm enraged for you and some of our other cases that acknowledge that is there's a see a similarity of appearance if provide specific jest can at least when you're in the same rear of the jersey that doesn't exist in any of the prior art references what role does the ordinary observer test play in obviousness for design i think once you get past the first two steps so you've created the sound of a rose and from something that's basically the same it might have a minor difference but certainly not three large differences but if you've got a rose in reverence and then he's got secondary references i guess to quibble with your language a little bit how do i know it's a large difference you say i have three large differences the v neck the surge stitching the that's you're hitting right on the point this causing me some concern in egyptian goddess of course we discredited somewhat the notion that you translate things into language and the language becomes the test we emphasize that you're always in this ordinary observer world where how it's perceived by that  skilled observer becomes important i understand what i just learned one from is and so you can do the ordinary observer test you have to create something to be of ordinary observer to compare and to do that you have to evaluate that well first of all i would say the data question is fact if there needs to be resolved and we certainly can't do it on t v just because if you have a difference of opinion or you know it's not a question of law whether something's great or large that's a fact finding question and you know we're we're on the summary judgment seat where they're supposed to have a clear convincing evidence i can point to several differences in these in these jerseys question the selection of a primary reference or the determination that a reference counts as a rose in reference then a question of fact or a question of law i believe it's a question of fact and so therefore a nd how about whether a secondary reference is so related to the first primary reference that it would suggest the usage of whatever ornament station there is and secondary reference to the first not say why it's so obvious it isn't that the very basis for the combination that the references are in the exact same field of arc here would be at jerseys and they are so similar looking that and therefore so closely related that combining known elements using known methods would lead to a predictable result and you could do any kind of different combinations of those particular references i think you start running into to trouble when you say to combine so many of these things together i mean if you look at what we're just talking about two or three references a lot of mean i don't know what you know design patterns when they're issued or natural to bring to charge somebody with inference but you have to find something that's basically the same there it's a very narrow claim to begin with so it ought to be that if you're going to apparently if you have a sewing machine tossed it anywhere that's obvious to some extent i don't understand and then in the bench or the baseball jersey we have a collar for the sporting canine that's not anywhere similar patent application tomorrow that's identical to the for a patent except maybe there is yet an extra line of search stitching going on somewhere in the jersey and then all of a sudden that would be another design i think it could and in fact it would direct the court to another design tattoo which recently issued for hockey jersey where the only difference really is the lengthening of the the arms of the jersey and non record is there to characterize these differences as the minimum he characterized them as large the court says de minimus what basis in the record is there to make that judgement i think it's picture and nothing more so that these are incredibly finely distinguished designs where with three differences you really are talking about a significant amount of difference i don't believe so your honor and on what basis what in the record gives me a basis to believe you that it's to menace well for him that it's large the judge listed half a dozen features of the prior art that were found in the claim designed the judge distinguish features which were not the judge also said that the claim design and the prior art were identical in shape and configuration they were all had jerseys you lay one on top of the other you can't tell the difference and the visual effect is the court making a fact finding there or is the cor  lying on a record is there any is was there an ordinary observer or which i think is probably the better test after egyptian goddess but taking the ordinary designer is there was there designer of ordinary skill in the record not only have of the appellee your honor and now going on behalf of the not on either well i think the court took that into account and i think the power was it dismissed well the judge well the evidence of copying was only copying by i don't know what did the judge say exactly said that the copying was only by the the accused infringer and of course if that were the test then every patent case would have objective what else and not  because there was this licensee question and the only licensee produced by the plaintiff their credibility determination may well we're going to dismiss this objective in dish if evidence because it's only presented by a party in the case well i think the court weighed that but then how do you make a credibility determination which is factual on summary judgment when you're required to perceive all facts from the perspective of the non movement will visit the court goes through the the required fact finding and then rose to have them on the record for me and once you have believe the court took the evidence into account and determined that the other three gram versus john deere factors weighed heavily in favor of obviousness and were not outweighed by the objective evidence that two prior art and concluded that this is similar to the elements of the plaintiff learned the features that the court relied on just generic features of any teachers of course of pitchers is going to have an opening for the next it's going to be tubular these things that were cited as similarities were nothing more than saying they're both jerseys with all due respect i disagree your honor the court specifically found a the shape opening in the neck of the dog to sleep with cuffs stitched to the body for the two limbs cross stitching between the sleeves which is not something you find in every football every pad jersey to side portions and the next leave inside are made of a non national tiriel and the body is made from the mesh material so he was she excuse me was specifically  she went on to say that the vien that color which was not in the eagles jersey the additional ornamental search that chain on the claim design and the court said unlike the eagles jersey the claim design uses ornamental search stitching down the rear portion of the dirt jersey in the dish and to learn a mental service stitching at the top of the jersey in between the sleeve these are the differences relied on by the appellant and the court recognize those differences and they said this is taken altogether it's a clear verbal description of the overall appearance of the cla i think the court was very specific about what the for a date and four eight seven patent showed and their description i think met the underlying rationale of girling which is to provide ample reasoning for the court's conclusion of the obvious the secondary references were clearly so related that they were capable of combining their features with the primary references they were pets or c's they were substantially identical in shape and form they had seams along the same places as the as the coin design and it would be the most natural thing in the world to a designer of ordinary skill to use any of you know there were so many of these different features why didn't you just copy the cues as well i don't know that there is any specific evidence of copying in the cage and the and there's an allegation of copying is there not well which would have to be again a factual determination so you tell me there's no copying the other side tells me there's copying it sounds like we need to go back and find out what the facts are right well even even if there was if there's so much variation why did you if not copy come as close as you could to the identical design here well before the patent issues of course the the anyone has a right to copy a product that's essentially in the public domain and then after the patent when they prosecuted this patent and they failed to bring it to the attention of the examiner during prosecution those same two jerseys relied on by the lower court were supplied by  and yet they didn't bring it to the attention it's really hard to believe that the p t o allowed the sabbath cation over those two references and that was the that was hunter's good faith belief and sleeves instead of short sleeves there's no mesh fabric remember the v two in the eagles jersey has a large portion of the body viewed with this mesh fabric so it's easy to understand patent examiner would not consider those two references even if they were submitted to be relevant to the issue of a jersey that did not have any match what do you say to your opposing counsel who  finders opinion to make the combination well there was there was set forth by the lower court and extensive rationale for making the combination and i believe in the design time case once you show that the secondary references are related that is sufficient because there is there can be no rationale drawn from design patents or designs  design patent context we are we have apples and oranges here there are no teachings in that way and the design pattern i would like to address is if the court will allow this question of a conflict if you will between girling and gyptian gods when it comes to the verbalization of a claim to some and suggest even though we believe the lower courts conclusion of obviousness is sufficient to carry the day the court may wish to consider this larger question in that there is a requirement for a district court to verbalize a claim designed in the context of obviousness but there is no requirement to do the same thing in the context of infringement and we would submit that that is an inconsistency that some day and maybe this case would need to be addressed by the court in the junction goddess there were several rationales presented by the court as to why burble ization was not favored number one the picture is worth a thousand words the drawings are their own best description there is enormous difficulty in trying to reduce a claim design to work secondly verbalization places undue emphasis on individual features of the design rather but the there is a footnote and gyptian qantas was in there and the understood and recognized the verbal formulation verbal description requirement for political purposes isn't fact the existing law  and of course a footnote in an unrelated issue is that and there is no reasoning i think the best we can garner from journaling is that the court wants to have a basis to review a lower court's decision on obviousness they want to know the reasoning of the district court for you so they can review it conceding under current law the district court did not follow that the requirements of our press that because that has no relevance to the result i'm just not clear well what you're advocating the reason i'm bringing this up your honor is because the appellant brought it up in their main argument and i'm just suggesting that there  inconsistency this may not be the ideal case for considering this inconsistency but the issue lies there and simon your time is about but let me ask a quick question what is the  test what's the proper perspective for one of three in design oh if ordinary observer ordinary design it's a designer of ordinary skill the honor as set forth by a lot of this court's precedent particularly the in re now banding in case that considered this very question is it and what marian server or is it a designer of ordinary skill and they considered all the precedent that said ordinary observer and in a lengthy opinion judge rich concluded  this clerk in the apple samsung case regarding a tablet computer and in the recent high point mr dicks got what was it about the district court judges verbal description that was so lacking that we would need to similar obviously what the district court did was look at a pad jersey and say any pack jersey is to say that that's the same she didn't the the the the district court judge did not  acknowledge the one of mental features that make this pep jersey different from the others in fact i think she did she identified those differences and then ultimately found them in the secondary references except for that extra line of teaching on the back which she concluded and i thought it was interesting in the prior argument the counsel said that the search for fishing between the the sleeves on the chest that's not present the par number not a record that we're what what is your best secondary consideration we're talking about the first time you were up here and i couldn't dream i don't remember i remember there was a copy in your suggesting obviously proponent of copying and then there was a license but then i also heard that the licenses to a company that your client actually controls i'm not sure that's  i'm not sure the status of the light was quite there anything else in the secondary considerable i'm just as well but the copy is the big one you know they were they had to be to jersey they previously so they could have sold that we certainly can't claim that that was an infringement