trust one let me start first with the issue of obviousness and the court's ruling with respect to the rule fifty motion when we look at what the court did we believe that riyad there than follow precedent of th court and the standards of pluggable on rule fifty what judge also in essence created was in essence test when you read his order he compares the essence of the prior art to the essence of the invention and frankly we believe that that's not the appropriate test under any of the law that's been decided in the circuit and in what he did even in that regard as he looks at the essence of the invention he oversimplifies it he talks about it being a mirror hydraulic system attached structure it has a lifting mechanism the only difference is that it's compliant structure comes up rather than goes down no that's that's not correct your honor ok what's the diff when you look at  the patent office obviously and it's described in detail and it has to comply the structure of the hydraulic is has a baton or it has an airbag below which lists these lifting members and the design of that piece of equipment is somewhat unique and i think in port here it has the right conveyors and then it has the lifting bars that come up but yet in the us there's it has the air bag that lifts up against a steel member and then lives up against the lifting members yes and so you have the situation where the air bag there albeit below is not lifting directly into what are the the rigid members there is the steel interface between them but i think what is that's not going to make any difference as for the complaint structure at all as it is going to have the same there the fact that there's a deal her it actually will have eight million actually do have a difference because obviously the problem to be addressed in this battle is the lack of compliance in the patent talks about the difficulty in the prior art in terms of having this complian structure it talks about springs which if we get to visit i will talk about and then it talks about the problems in palm but busy we have to read the same time because it's a compliance structure just coming down from the top well that's where you are on it will have a debate as to whether that is a compliance structure or not because frankly one of the things that we think happened in this case is and if you look at judge also the order he says the scope and content of the prior art was undisputed nothing could have been further from the truth in this case it  pliant structure shrug it again that was disputed and there was testimony from the people down in australia that while that was attempted two of them together that tipping was disconnected rejoined judge also up to make a finding that there they were together pre i appreciate that and that's part of the earth clear error in that well i think there's an error in in the fact that he's supposed to be giving the inference as to the george martin company and the martin family trust as the nonmoving part and as you go along through his analysis of the questions  fact which you find is that he is indeed weighing the evidence he's weighing the credibility of the witnesses for example on the issue of the compliance structure our expert mr harper a little unique though he's got he's had a trial there is the summary judgment on the written record sort of a situation is no i don't agree with that that we have a record but but when we look at the scope and the prior for the judge in his role fifty or to say it was undisputed  busy operated like a compliance structure that's where i come to this issue of the dispute in the records where we have testimony from mark bank houser who is the person on site most responsible for this machine saying machine was allergic to breaking saying the machine created chaos within the plant saying that it could not reliably break and you look at and come back to the point on the the essence of this invention if you look at the summary of the invention it actually talks about the essence being reliable breaking utilising your compliance structure well but the claim features are what we have to worry about for obviousness and there's nothing in the claims about working at a certain rate or having a certain capability due to  handle a reliable throughput at a market rate we can talk about the market and i agree with your honor that nothing in the plans that talks about commercial production speeds but when you look at the essence of the invention i'm coming back to his test that supply the essence of the invention if you look at the summary actually does define it to be in terms of reliable break and the issuer liable rate is one that goes to this heart of whether busy is a compliant structure or not because a complian structure will break logs multiple logs of uneven height reliably springs foam flat plans that will break them but will damage the law the problem springs as described actually in the pattern is that they won't do it reliably because they have this question perhaps as well or isn't the simply turned upside down and it is not that and it is not as he says isn't it the simple decision of where to put the compliance structure that is only one of the factors as as dan talking is here today actually was designing this he has a myriad of design problems yes but then a myriad of design considerations and we're going to look at what he has to do location of compliance structure if you want but then it is orientation of the file structure is springs versus a compliance structure he has to consider whether or not to use rigid members he talked about the force orientation parallel versus perpendicular yes to think about how do i do the operative engagement and if you do the simple math and you multiply out those for m we actually have more than a thousand and permutations how we can orient these various elements so it's not simply a situation where i have a compliance structure i'm flipping it upside down and that's the difference with the palmach machine it is not a complian to obviousness we talked about whether it works because under the test it is what does that teach to a person of ordinary skill in the are so reliant did work right and i disagree that it might not work what does well it might not have been commercially viable but the evidence the undisputed evidence was that it did work was capable of doing a certain function i think we have a disagreement that you and i think the evidence was not that it worked for a certain function i think that was the problem with didn't even m say yes it'll break the law no what mr frank hauser said was if i move it into the machine out of machine into the machine out of the scene and i back and forth back and forth i can perhaps get it to break in that situation that's not acting as a compliant structure that's the difficulty with this because we have to decide this wasn't proof that's what it's defined to be it's an improvement over the prior or the prior art that is described in the patent are springs so the determination has to be made by the trier of fact busy truly compliance or is it merely acting as friends maybe this is the right question we can use this is prior art even if it doesn't work right you can use it as prior art under one or three for what it teaches or what it will teach one of skill and the other and so the question that that i think at the core disclosing to you still lies is that if you look at paul mack which has a compliant structure coming up from the bottom provide whatever poem that did not to say come from the top be a little more cushiony and it'll work right and why wouldn't want to still new york see that because when you look at the file history what was before the patent is what was shown it busy is nothing more than springs in the key to busy it's the orientation of these inflatable seals contain within these metal rivers running parallel to the direction of travel of the boards but that's a great as the district court found that busy had a compliant structure it was not just brings it had that to be that linked hydraulically the various structures well and that's where the court this determination of undisputed fact that it had a compliance structure and that frankly is what we take exception to in part with the court's order because where you have testimony from a variety of on side individuals you have cross examination from guys employees you have their own trip reports going to this issue of what is it acting like you have mr tompkins testing himself both of the inflatable seal within the group and that's good to look at because when you look at that testing that testing is what is it shows how it is acting and what it would teach and i think at the end of the day you get the point where you have a spring structure to a person of ordinary skill and they are and you have and that combination is not teach you what is the going to make this determination of the first prong and we've raised that in our briefs judge also said that any evidence could be considered regardless of when it was developed we think that's incorrect we think the eye for eye ltd case out of the western district of texas is the correct he ruled on willfulness on a rule fifty motion at the conclusion of evidence he made that decision that he let the case go to the jury on obviousness the jury hung six to one and george martin's favor he actually then ordered more discovery on this whole question of visit and morning your honour's time that may please the court representing clients machine your honor it's not correct to say the judge also didn't focus on the claims judge also did exactly what pierce are asked him to do which is to focus on the claims case are going to court here that really cuts across all the issues in this case and that is what matters for obviousness is the objective reach of the claims the claim extends to what is obvious it's invalid under one of the three a everything we just heard we never heard what the claims actually are for compliance structure a compliance structure is simply a structure that the forms to allow a more uniform distribution of force it has to be fluid pressurized as tests have an airbag that's a fancy name for an airbag and it has to be formed to allow for uniform distribution of force that's what a compliance structure is it's nothing about actually like a spring it's nothing about reliable braking that's it that's what claim one covers that's what judge focused on now judge nelson in the summary of the invention it says the essence of the invention is the provision of fluid pressure compliance structure to provide a re braking and of course what does that mean reliable those easy and i'll get to that in a minute this he did break multiple locks of money even if it's in some circumstances that's an uncontested fact but the claims don't require reliable break that would've been easy to write that into the claims they did they chose not to how do you do with the secondary consideration in particularly the one of long felt need ok your honor that  is that how you say it right hasa reference right which is shows that the market still trying to find a solution you've got a long felt need here i don't think it does show natural order again as kids are teachers we have to focus on the claims and they have to show for secondary consideration a nexus between the claims and what the secondary consideration is and the long felt need that might have been out there was to break three or more logs of multiple heights three or more sort of unlimited infinite compliance ability there was no the claims don't cover that that's not what they do cover that's not the patent feature the claims including encompass plurality they only talk about two or more the pat brief which broke through logs on even i that's that's and undisputed the fact that george martin come to market they have to cost comes into the market to compete with us we had the market there wasn't a big demand for this or so thousands of converting lines and we're selling ten or fifteen bottle breakers a year so it wasn't really a long felt need at all because nobody's buying these things to speak of the fact that martin comes in the market competes with us to cost comes in the market to compete with us that doesn't show we always have this problem with secondary considerations is that they they're they always occur in the context of a larger intervention and a portion of the need a portion of the success a portion of everything can be to what the claims cover which is breaking multiple logs two or more just two that's where the sheens working better and people are buying it because it works better and faster and more reliable and that has something to do with the compliance structure that your honor the evidence doesn't link that up to the claims it just doesn't and it provides ample evidence for why but leaves it up to compliance structure like set up the claims it links it up to a full floating platens feature which is three or more they could have written a claim to three or more instead they want to claim that was broader than that to two or more we had a machine that broke two logs too large of an even height we kept selling  they served theirs because they had strong monopoly in the stacker market and that was a huge advantage to them and because they were a new competitor they're going to sell some machines but we kept selling ours right  guess the fundamental point is secondary considerations can't overcome such a strong showing on the primary factors let me get back to that if i could the key on the visine machine is the evidence was uncontested uncontested that it had a compliance structure in the words it had the physical structure that machines uncontested it is not right to say those airbags were not plumbed together they were come together when they left the factory they were planned to gather on the line in busy in australia there was an experiment i do see to take some of them to disconnect somewhere but it's just not right so we had a structure that performs to allow more uniform distribution of force that was uncontested there and witness mr talk and proved that proved that through testing this discussed in the briefing that describes how when you lower the visit platens down to the log the teller log pushes some of the air out of the grippers tree transfers the force over the shorter log and you have a more uniform distribution of force that's it full stop what do you make of the district court seeming reliance on the  invention you're on is that really consistent with the way we treat our notion of obviousness your honor he was using the hydraulic system as a shorthand for compliance structure remember that we stipulate the party stipulated that only elements were met of claim one except compliance structure so he hasn't done anything wrong he's applying the claims judge us up as the one who made us fill out these color coded plain charts to stipulate as to what's in and what's out all they can test the trials compliance structure for busy and the undisputed facts show that that compliance structure element was that it was met well let me address some of what i would have been motivated mac which has an air bag running across the floor material on clamps from below and you've got busy clamping from above with airbags running parallel to the floor material each causes some design issues not th visine and all macros still not quite the compliant structure of the claimed invention what would what would lead one of skill in the art give them any commonsense reason it with a metal interface that probably takes a little bit of the uniform distribution out of it that difference isn't in a claim trotter it's just an l shaped rod that rides on that airbag instead of having the rod itself right up there that difference is not in the claims will but the claims are talking about that uniform distribution principle right that allows you to the extent that you've got a solid piece of steel and be tween you've got a little less uniform distribution don't you i don't think so your honor as a matter of physics i don't think so it allows and it's uncontested the report as it's uncontested homeric as a compliant structure that allows for more uniform distri of force that was on contest list not a very flexible member for this insidious it's got the rubber bag with a rubber hose running the fire hose running across that's a flexible member and that's on contest will not let us put it this way there is a difference in some respect what would motivate one of skill in the art to traverse whatever gap there is between the prior are the claimed invention ok if you're looking at parliament as the primary reference there some advantage to obvious advantage to clamping from the top you don't have to deal with the conveyors coming up from below you've got that space that you can arrange your platens however you want them whereas comic you're constrained by coming up from  acted as a unit at sonic velocity so it still needs that plane for requirement of with the cross but you could look at this see and be motivated to use palm x airbags because you've got one here you know it's fewer parts and it's these are just common design choices how you orient the airbag that's not what this turns on whether you come from the top of the bottom that's not what this turns and this is all ordinary skill and you can search the record all of the day you will not find an explanation direction we need to look at standing here before we address of vs this you do not because you have two parties in the case one of which conceitedly has standing so you only reach danding if you  reverse on obviousness you only need to reach standing if you were first on obviousness and i did bring up standing in the briefing as an excess of caution to make sure that my client's rights were protected if we happened to los will really saying on standing your honor if you read everything we said is that this court he hasn't directly addressed the statute and really doesn't need to address the statute and even if we were to agree with you on obviousness we vacate the will right there's no reason whatsoever to to reach whether he was correct on willfulness that's right that's right i misunderstood your honor apologize so let me just with the record so anticipation is really an independent ground to affirm the invalidity of these patents the key is did the visit machine work for the intended purpose of the claims which was to break bundles of on even hype from the log that's it and the testimony of the uncontested facts want to be clearly uncontested facts a stablished that it did and what i want to emphasize is a point of law to your honor's is what we're dealing here when we say works with the work for the intended purpose that against this at appendix seventy seven twenty he said the machine worked to break smaller bottles of wine even high the machine worked a break on tools of eve flute product of an even height sometimes manual intervention was required for the bundles but not all the time and it worked in manual mode that's all the claim requires and you're saying there was no contradictory testimony he's the only witness for them so he's the guy who attacks where they're busy work our witnesses also that it olson and he kept in his also testified it was common in routine and in many applications that the bundle breakers did work at the plant so i don't want to make sure that both helps us understand what does the claim teach for obviousness and what does it also as to the inferences that were being drawn by the court there is extensive evidence in the record about commercial success about a long felt need about lot of tory praise from the industry including from alliance including the detail years of others including  alliance what was curious about what the judge did is he then goes to casa to find that contemporaneous invention trumps that evidence and the only thing that was in the record with respect to possible was a stipulation that he was known in the united states in june of two thousand  judge also found although he has a question about the burden that he raises in is a next to the court but he found that there was a prior conception in one thousand nine hundred nine and prior reduction to practice in two thousand and one and earlier offers to sell by the secondary considerations and the claimed invention and i suppose one yeah i think there is i think if you go back and you look at the original offers for sale that were put into evidence through morgan of the george martin company it talks about patent of the quick break system it talks about its ability to break multiple logs with with this compliance structure i think that is sufficient in fact where you show a commercial success or a presumption of the next as i think we went beyond that and actually through the evidence of the witnesses but on the inference question let me go back for one moment to what judge also does was the really commercial success i mean you continued to sell about ten a year they consumed continued to sell about ten a year there wasn't any great leap oh actually it actually if you look at the evidence you have to go then to the damage experts and you look at as they track the order and you look at how they track the market shares and you see the difference in the market share for the ga mark up and as it explodes  comes to market with the put brake system with this feature of a compliance structure i think there is direct evidence of the nexus to the commercial success with respect to cause i don't see how you draw the inference of contemporaneous invention where there is no evidence of when to cause a quote invented it's machine there was no testimony from engineers there were no documents and that's what's troubling as the inferences are being drawn judge also draws an inference of contemporaneous invention to overcome what we think is this a ific evidence of secondary consideration and i think that pervades the entirety of his or let me go for one moment because as i think the situation here where we need some final thoughts yeah when you're i was asking about what is the motivation to combine i think if you look at the human face which it talks about yes obvious to try and now maybe consider the case or test but obvious to try does not equate to obviousness in certain situations and that's the one we have here i think we that's why i talked about the myriad of parameters what mr talking was facing in the industry what he had to consider and what he had to come up with not only in terms of placement but the other factors and i think that takes it out of the obvious to try situation to thank m pitt i don't think there was anything on the cross appeal addressed that correct your honor we are finished thank you for hearing us out thank you the next case