device that attaches to an electronic component those radiate heat and we just jumped to the heart of the argument is i understand your argument here is that the district court erred in a number of ways one of coke's provided no evidence but the evidence is of course prior references i guess i thought that your you just said the court relied on them and interpreted the references themselves i guess my misunderstanding i thought part of your argument on appeal was that they basically in the district court just sort of adopted the expert testimony provided because he concluded you provided no evidence t contrary and i thought that part of your argument was he failed to look into the references himself to determine whether that expert testimony was selling i believe that substantially correct the district  t my word or words would have been simply adopt the expert report of the decision of the district court talked to spoke to the references in several respects it spoke to filled in the missing components with expert testimony  far off that they simply did not appear to us to merit whatever disappoint it's too late for you to introduce any expert to mean we were to send this case back it would be too late certainly be candid we don't believe one is necessary because to look at the records speak for themselves the heat sink it issue here is it's look it has no moving parts it's literally a piece of plastic that you turn side the side  a childhood and making it sound like your inventions pretty simple and easy what the relist was simple and easy but it took humans thirty thousand years to come up with the simplicity alone doesn't render a patent either obvious or anticipate certainly not anticipated there needs to be some creative genius and i believe that the simplicity is in fact the creative genius in this invention the district court everyone is has concluded that the just of the invention that's a term that was used in a prosecution history adopted pretty much by the examiner during the prosecution it just is that those two pieces of piece of plastic and piece of metal one rotates with that simply fall that it's a judge should have looked at smithers and seen there's no evidence of rotation yes your honor that is the essence of the smithers reference was admittedly not before the patent office and it was relied on  not exclusively but largely exclusively by by dr carmen and his conclude the analysis but and that's that's ok i think the expert has his opinion but it's such a simple concept that one need not be an expert to look at two things when need not be an expert to look at a piece of plastic and determine well you know does this look like that or doesn't this rotate with respect to the other the the more technical of the or the legal argument is that  carmen relied soley on patent drawings which by his admission and simple reviewed reference simply speak not at all to whether it can be rotated his conclusion from looking at the drawings was to know is it whether it's a test whether it can be rotated i don't think that would be a good test for you i think when the test the whether or not it teaches rotation whether it teaches rotation or whether one would be motivated to rotation so that the notion of rotation is not taught by the reference it's not discussed certainly while explicit teachings no no no are required there's nothing even remotely related to the notion of rotating to accomplish any different and is it your view that the district court relied on dr carmen's assertion that the reference is self taught rotation is that the way you understand what happened honor to think that we conclude the reference doesn't clearly teach rotation or teach it all then this has to go back but of course and dr carmen i would think for the court could look differently and say well the reference may not disclose rotation but one of skill in the art would understand would be motivated to modify what that would be our second position is that you can't rely on the drawings of a patent for that specific element to it to suggest that if it does one would have to conclude that the drawings themselves are sufficient to di no you're odd you're correct we are saying that the drawings in the patent do not support the conclusion cannot be relied on for the conclusion that a rotation is taught not unless there's something in there there's a little curved arrow that sort of indicated and anything around or anything at all when it comes to dealing with a differentials of c p u assemblies it was known in the art to use a pad in order to make sure you make contact with the so the examiner had the notion of a component that can be altered slightly to adjust the height and in that is the import of the import of the gist of the invention to be rotated because that was the distinguishing characteristic an additional reference was included but it was a reference that that was the marwat reference which basically is exactly what our patent described just you have to have as as you have to have an additional component that you include with it to take up the space maybe that's known but that's what we were that's what the invention was trying to avoid the cost of materials a lot cheaper to have one component on the shelf inventory then two to serve the exact same problem so i think i was just going to ask you you do have a patent though so you do have this additional component i'm sure invention i thought you were saying that  your invention is better than the secondary references because the secondary reference is not about the need for some additional component in order to make the contacts but that's in fact how your invention works with the use of the path not not al grooves and when they cut it they're at two different heights so i should just think of it as sort of like an integrated step on the top surface of the dissipate or i shouldn't think of it it's separate off the shelf components that i just pop on top of the surface is not a separate component it is the the heat dissipate or itself and once the retaining devices that the claims that stack so that's what i'm trying to figure out on sure one claims is patch the other  argument you indicate in your brief that you think the district court erred in rejecting the property evidence secondary consideration but what i don't see is a manner in which you've argued to us that they erred including understand your brief is challenging the second of those two fighting but the first one would preclude the testimony so what did you and i misunderstand the record do you think not one of the says it was not my onto a c p u or other kind of electrical device and you can rotate it so that if it's two different thicknesses you could use the same clip with two things so when i read that what are they talking about it occurred to me it's just like a sink drain or when you have a plug in your sink and if you put it when you know one rotation it functions as a drain or any rotate it ninety degrees and then it pops down and outputs a sink instead so we're really talking about a very simple thirteen and fourteen are perpendicular to each other so it talks about the grooves being perpendicular to each other which suggest then that the clip on top would fit in either orientation dr carmen talk about that we dissipate the heat by having the lowest portion of the curve beams thirty three thirty four touch the top surface of the heat disappeared or the part of the clip that has includes the cur twelve are the individual fins an element ten is the heaps of peter but i'm saying on your retaining device you're corresponding retaining device and smithers they know what is making contact with the with the top surface with the top surface of the heap dissipate or thirty three and thirty four and then slipping the heat dissipate or to the chip underneath are the corner pieces that are thirty five thirty six thirty seven and thirty eight at the corner  what what should i consider to be the bennetts if i think of and as a noun right where i believe  it was construed to be something that is pointing in a separate direction from the rest of the resilience leg resilient leg is the entirety of thirty three and thirty four those are the two resilient legs the generally different direction which is the definition and then is the fact that they curve down they don't go straight across so the plane of straight across it is it goes in a generally different direction by going down from that plane and what portion of the smothers spec tells me that the lowest portion of thirty three and thirty before are are and the channel goes all the way to the base where the fins connect to the base of the heap disappear so getting back to the rotation concept what is it that that suggests doing that in the prior  where you can have you know two levels on the top surface and then if you rotate it in order to compensate for an overall differential in the height of the assembly you'll still make contact according to the testimony and excuse me the declaration of dr carmen to a person of ordinary skill in the art knowing the issue with wanting to compensate for height differential knowing about smithers which clearly shows something where rotation is possible because it's a square clip over a square and symmetrical dissipate or with perpendicular grooves and knowing the prior art maravich says this is basically used pads to compensate for different heights and a person of ordinary skill in the art would have been motivated to use the pads from our walk and the and otherwise use smithers to have a clip that you can rotate to have two different heights  dations i guess for me the problem is this was summary judgment and what i hear you arguing now is that one of the skill in the art would have known that this could be done but that none of the prior art references actually effectively disclosed it and the problem is i don't really dr carmen's declaration to have in front of me is actually saying that so point me to where it does and secondly i don't read that me since he said smithers disclose everything but it leads me to interpret his opinion as concluding that smithers discloses rotation not that one of the skill in the art would know you could or would  area in which he says something relevant to his mother's declaration i think there's only one page right and i believe that's right i like little more than one page so dr c declaration is that smithers discloses the ability to rotate without the pads of marwat there's no reason for smithers to set on its face you can rotate this because there isn't any until that smithers doesn't express lee referred to a second orientation that it would be his interpretation of the figures that you could rotate it now this actually may take us to the judge more you mentioned sort of procedurally this takes us i think to the evidence tree issues in this matter which is that there is an expert declaration in support of the summary judgment motion this expert was not supposed to either in fact or an expert discovery there's no expert that that the plaintiffs the patents he has put forward what the burdens are and what what the burden especially on summary judgment is that summary judgment can be granted obviousness as well well known and well understood and that's not in dispute typically a summary judgment of obviousness is granted where you have one expert on one side opining that things are obvious and another expert on the other side opining that things are not obvious if in that situation you never the less can properly grant summary judgment it seems procedurally troublesome to say well if you have evidence and an expert on one side and nothing on the other then that then you can branch summary judgment that gives perverse incentives in the opposition summary judgment i don't think it's the case that you can't grant summary judgment part of the problem is that this opinion for me doesn't do any sort of analysis of the elements all of the elements that they complained in their responsive briefing were absent from these prior art references and that's that's what's bothering me in particular what's bothering me is the rotation and it may be that one of the skill in the art would look at smithers and you know in the drawings it's possible could be good but that's different from concluding it discloses on its face rotation and what i don't see th district court doing is saying i agree with dr carmen that middlers doesn't disclose rotation but his analysis of what one of the film the art would know or could have done or be motivated to do is acceptable what he actually says is carmen concludes that there are scores of every element except pads and then he goes through and talk only about hats and i think even you and i as we're standing here are in agreement that that dr carmen didn't say smithers discloses everything does this opinion suggest to me that this district court judge either didn't clearly understand carmen's declaration didn't fully understand his burden you know that and maybe that that's the reason he needs to go back and do it properly since it is s this court reviews decisions not opinions and so i think it is possible if that is a a a small gap in the analysis in the opinion of the district court it is still appropriate for this court to  the full standard for obviousness the level of ordinary skill in the art was not disputed most most there were very few disputes the disputes were around the rotational moment and the  exactly the point that i was going to make is that the stipulated construction requires a resilient leg and then a bit of bent the bent by stipulation was construed as material that extends in a generally different direction from  conceptually that renders the possibility that the resilient leg is itself the bent impossible it can't both be something and also extend from itself without continuing to be  so the resilient legs having to bend the bent is simply absent from the teachings of smithers it's just not there the reason that's important is because that bends extends from the leg and is that bent that engages the top of the heat dissipate or and depending on where that lands on each of the two different levels of the heat sink will accomodate different height the reason that is critical again the gist of the invention span is retaining device ninety degrees and the very thought of portions section of those curve beams will also again still make contact with the top surface of the find their teeth disappear assuming for the sake of argument that smithers can be rotated even combining that with the pads of marvel what you still have is a device which can be attached in one orientation assume it can be rotated but rotated attached opposite orientation is still the same height no height adjustment has changed at the pads of more marble and you have the same thing you have a heat sink that can be adjusted for a different fitness because you added this symmetric pad from our law and then rotating the the retaining vise till accomplishes nothing is phillip the same height it in again i keep coming back to the just the invention the clever aspect is that simple action of rotating even if it can be gleaned from of the smithers reference there's nothing that suggests oh if i rotate it i can land on a different level of this he dissipate or and adjust for the thickness or fi rotate the other way i can land on the other level and therefore the cleverness of the invention is is the reality to the realization that that very simple movement can have a very