points first i'd like to suggest the holding in seaway from december of last year should compel a reversal in this case second i'd like to suggest that the application of the standard for design patent infringement should compel reversal in this case and finally i'd like to suggest that the opinion of our expert on design should compel or personal in this case for a page fourteen of a slew of opinion shows a depiction of the of the patent of design and a piece of prior marked the court expressly found in that case that there was a genuine issue of material fact as to whether or not the item of prior art you know was specifically we're dealing with the in souls in these these clogged like shoes was sufficiently close to anticipate the test for him to suppression being the mirror image of the test or infringement the court should find that if it was close enough in this case to present a question the fact that it should be close enough in our case to present question of fact specifically in our case there's three different infringing products there's what i call the a are converted the a r four and the a r twelve let's deal briefly with the a r are converted because i believe that's closest to come up with the name are converted all the defendant did was take a prior infringing product infringing as a result of a prior litigation between  ms which was affirmed by this court and put a different lid on the reservoir cover that is an extraordinarily slate change and i would suggest to you that it is dramatically less than what the coworker referred to as a distinctively different design in the seaway case with respect to the a o r for the defendants changed the base of the device only except for some very very trivial changes in the body and i would again suggest to you that those changes in the base of the infringing product the a are only are not enough to take this case away from what is compelled by the hole in holding in the way when you put the camera and the bottom together i'm not going to tell you th easy case to decide whether or not that is within what's shown on page fourteen of slipping in the seagate case but i think you can easily find that there's a question of fact on that issue based upon the general principles here and specifically if we get to our second point which is the application of the to the design infringement task of focusing on  test for design patent infringement i think you can very easily find that there is a question of fact with respect to each of the three products which are the subject of the case the first step we go through is we ask  abstract to hold up the design patent the hold up infringing product and can you say just as a matter of common sense that these are so different that no miserable ordinary consumer could possibly confuse and the answer is in this case you can't say that and that the key here is that we're dealing with a part of the me which is certainly it's sunbeams largest selling coffee maker ever it may be the largest selling coffee maker in the world that's what we change yes yes but but the key to understanding this is that who should decide whether or not that change is going to for the ordinary purchaser shouldn't shouldn't be shouldn't be in charge merely looking at one design prior art in the q s design or shouldn't be ensuring hearing tell the money about who's actually going to be purchasing these products under what circumstances are they going to be purchased what's the level of care that a purchaser is going to give to these products now here we're dealing with a very inexpensive that's called a traffic builder coffee maker these things are cheap now suggest the amount of care is going to be very well that's what our experts state now just because the price is low doesn't necessarily mean there's going to be a small amount of care involved  cell phones for example if you ever see big teenager pick out a cell phone there's a lot of care that goes into that decision i don't think coffee makers are like that i think coffee makers you just  know it's not something i think most consumers spend a lot of time and i but the way to figure out whether or not the actual purchaser is going to be seemed is to have a trial i want to show and let the jury consider all the facts and circumstances the client your argument going to lead to the conclusion there can never be summary judgment no your honor no your honor because where i'm drawing a line is you can't you can't have s judgment in situations in which the accused product is closer to the prior art than it is to the design patterns what we have in this case which makes it rather unusual is the district court the firstly admitted and something does not challenge that the accused products in this case were at least a reasonable juror so fine are closer to the design patent than they are to the accused products now i agree with you  en then the from from the design had maybe the accused product here prior art here design pat here we can't have that but in the situation we're dealing with here in which i think everyone is going to agree that at least a reasonable the trial judge adopting applied in iran is legal standard and in fact they can argue that because it didn't occur what you're hearing there ours is that they want you to apply a legal standard that exists nowhere in egyptian argues that the jews device closer to the patent to design the prior art and the court finds on a persuasive and then it went on to say that not only that but that's not our consideration because this court started with we will look at the d ordinary observer your honor the judge a major for summary judgment the judges test to look at these devices through the eyes of a hypothetical ordinary observer and that's the words of egyptian gods the hypothetical ordinary observer is person's visitation perception i find them in the judge's words not only sufficiently stupid but he said manifestly distinct so in terms of their innocence or so from that hypothetical situation he has to go on because that's to raise a very interesting question because another basis for the trial courts grant a summary judgment or something was a deficiency in the evidence that was presented by the appellant to the well as a hypothetical question so the hypothetical question is your honor that i'm think looking at the prior art as egyptian goddess instructed is also going to be helpful and it's helpful for three particular reasons the first thing the court said was as you look at a prior art it will inform the ordinary observer's view one is it makes certain what might otherwise be small differences significant to the observer and to what it does it limits the scope of the application of design packed all of those factors attention or because honest we submit that the differences between the jews device and the patented design are credibly significant if you look at just the design of the base which the court accepted was among the more dominant features that the submitted in the declarations of the designers that was submitted below and not contested there's also the evidence of the defendant's expert who was expert in design coffee makers and talked about the fact that when you have the plate the and it sat in the design pattern on a flat surface now what you have is the hot plate and everything's will be balance so that what you see is a very different elevation in the side than what you also stor changes in design of the grouping around the towers and what you see now also if you look at a twenty six which is the judge's decision where he did a comparison of the prior art the pattern of design in the juice product which is  redesign and the court actually said it is a viable and acceptable not infringing substitute that was never challenged and that decision went fine several years later at the having collected money in that first lawsuit in two which they were successful it was acknowledged by yet another court to be not infringing substitute to the patent to design secondly this court said following egyptian goddess to the letter as you or destructive to to tell you is what will the ordinary observer look to look to just those features that the patent design differs from the prior art to see if the jews product is yet even different still and in this case found and i was almost on the sputum that they were now in the public wants to talk about their expert report but the expert report is not a probation summary judgment it wasn't in many of the cases presented in the lower courts like i think we should talk for a moment about what the district court in fact did in reasoning that there was no infringement the crux of the district board's reasoning is that the focal point of the product is going to be the top of the features of a coffee maker along perhaps with the best and if site sunbeams brief now is there any evidence in the record which supports that conclusion or that finding of the just report which is so critical to  conclusion and the answer is not there are two parts on which sunbeam allies to get to that point the first is in eight to sixty five we have the opinion of a witness at sunbeam was involved in design but who never submitted an expert report except in the declaration is opt in opposition summary judgment he never did so he never scimitar to report just a declaration contains cuckoos that these are the focal points because that's an issue which is really should be the subject of only expert and that lay testimony i think that that should be ignored and the council the prior the only difference between the prior art and the five the five are these exact focal point so enclosure for the back of the korat and does the design patterns the design pattern hugs the craft to a greater degree yes and these the angles the angles of the back to the gasket are slightly different in your view to that extent the accused device is more like the prior art so it becomes difficult to start to mention you sure that i'm looking at the pictures the cues device doesn't come all the way around like the v product as it was a physical product as found to infringe and there are product is as it was presented to the court was the bottom and the top everything else of the hat was different the shoes were different but everything else was the same but no it doesn't mean it was and the fact that it was found would friends just mean it was identical it means the ordinary observer overall looked at it and didn't see big differences it doesn't mean it was identical well it was held to be infringing and it was the fact that it was a very healthy i'm working i'm looking you want to find problems with the district court analysis focusing on the top and bottom but look i'm looking at these three pictures and i have to say that's the only thing i'm focusing on me that my eye is not drawn to any other distinction but you don't have the products in front of you you have photographs of the photographs made comparing a see your commercial embodiment in order to try and figure out infringe might not be inappropriate i hear that and i think that's right but i think if you're so i don't know if there's any case addressing this but if you're sitting on the jury i think what you have to do is you have to look at that  drawing pencil and say what does that really represent in terms of a real object because if anyone tries to compare a drawing to an object will one just drawing one's an object i mean it look different the ordinary purchaser is going to have to move from the state drawing to the object through a mental process of turning the stick drawing to an actual product and i think once you do that then you're at the point where the amount the where that the difference between the product except for the base and except for the top is going to be substantially the same meaning any other