known polyurethane cover material you're given up on the anticipation or we're not giving up on the interest of patient argument that would that went by way of summary judgment we are peeling the grant summary judgment  because of the formal compositions of the molecule patent it was incorporated into nez but it was incorporated using language from in robots which was the appropriate language of the time it person of ordinary skill in the r would know well and i don't see how you can rely on i think it's inherent in the in the our your honor it's inherent and inherent despite the any direct statement in the reference to that effect i believe that's  soft outer cover but let's assume we reject that are ok and then we say that you gotta rely on the test ball right right i find the record very confusing about what the judge was saying about the test ball that was being used in connection with the anticipation issue because she seems to say well i haven't found incorporation therefore the test balls aren't relevant what do you understand her ruling to her grounds for rejecting the test ball in the anticipation context where i believe that is the sum and substance in the anticipation context i believe she said that the reference was not sufficient for the corporation and therefore we never really got there in terms of the actual test also at the time of trial she first criticized mister mcknight because he couldn't sponsor the test balls not having made them himself but we offered testimony from m bolton for example as to their actual construction their actual construction in conformance with the patents so we had a we had an evidentiary predicate that would have allowed the admission of the of the test false dr stats could have a them at the time of trial but all that was kept out of court on the obviousness issue the current made three fundamental error we believe and i'd like to review those first of all the core pal that in order to granted judgment is a matter of finding obviousness that there must be proof of motivation to combine the second is the court stated in her decision that when there is that part of the jury instruction you can challenge the jury instruction  right you're saying that she shouldn't have required motivation to come on what was the jury instruction jury instruction said that that was one of the criteria that the jury should take into consideration our problem with the judge's ruling on j morrow is that she said it was a senior or not to establishing obviousness and in fact she went further than that and said that in this case where there was an expert testimony from dr rice and that there was no motivation to combine that that created a quote almost insurmountable burden to establishing obviousness and that is not the law it's not been the lawsuits kaos are in fact the stem case which this court recently decided explicitly said that when the references themselves contradict expert testimony and that is the situation in this case that the expert testimony is not substantial evidence to support the jury verdict or to support the legal conclusion of obviousness and i'm having trouble seeing wise jury could conclude here that there was a lack of motivation but c'mon they shouldn't have concluded that there was a lack of motivation to combine because there was not substantial evidence to support that decision when that when the district court reviewed the implicit finding and of course it is an implicit finding because there was no  explicitly in column one in the second paragraph of the patent says use my polyurethane cover on solid golf balls monitor seventy five one incorporates the nuts but patent explicitly and  absolutely and there's there is a dispute about that which which really should be nonexistent because the patentee himself all of us that go meet in iraq but nonetheless you know we're talking about what the jury might have been persuaded is no and the reason it's no and that is not substantial evidence that supports the jury verdict is because the patentee used that correlation in south not only in front of the patent office to get that issue close case they would have a better argument but it is not a lost i don't believe you could i think the there is not evidence in the record to indicate that it is a close case when you look at the shuras the measurements that we're talking about and you look at the s t m standard you look at the charts that the patentee relied upon before the patent office and you look at the correlation the direct correlation to use the word i v in other words the direct correlation that the patentee use you see clearly that for example to monitor seventy two to seventy six is way below surety of sixty four pts in the fifty's but there is more than that if you're looking for a reference the should be less than sixty four mr battens testimony which i will refer than sixty four is somehow inventive is simply belied by the record a lot of balls had been out in the marketplace for years and years and years i'm sorry to trip before your time runs out i want to reach another issue in this case with yes a matter of american irreconcilable heard thank you and one of the arguments respect to that is that your argument was waived in this case by your failure to object and it strikes me mean the transcript that i mean the court says i'm not going to do this and then she says right now i wasn't there to observe her demeanor or who she looked at but it strikes me that when someone says all right they're open at least  in and say no it's not all right and your side at least in this whole colloquy was silent why isn't that a way it's not a waiver for several reasons the first reason is that under third circuit law  disfavored and the only cases that i've seen that waiver under third circuit law are cases when there is some affirmative conduct in other words i affirmatively made a representations to you took you and in this case because of the it depends what the court did i mean if the court says directly i see the issue of the appoint a waiver is to give the court notice an opportunity to correct  this was the time to raise it was an obvious one to raise at this time absolutely right and therefore if no one had if no one had spoken up at that time would the issue be way i'm not sure it would have been waived at that time i think it would have depended on what the court did at that time the court rebel verdict ahead the fed had to do is there anything we need to address before we dismiss the jury correct no one says anything so she dismissed the jerk right i think this would be a much better case for a waiver if that's what happened that's not what happened they didn't the district judge here on the post from oceans find that there was no way either yes the district court explicitly found that there was no waiver in this situation well i mean you say explicitly clear and i mean we can about what he thinks about that language and think that language is absolutely clear in terms of a finding i believe that's what that jamiel opinion says that she finds that there was no waiver in this circumstance what page says the issue is one claim which they found invalid is the deep end in claim the court says all right do you want to send them back now i says i'm not sure they understand the court's is i'm not go this all right i just wanted to raise it right now so this is the the existence of an inconsistency was made apparent to her at that time correct either side sought to have the jury go back and resolve this inconsistence with all due respect your honor the court preempted our other side from going further at that point i mean the clearer some of the inconsistent verdict when she first read it you have to assume that she recognized that when she read it separately she asked if there was anything further it was brought to her attention as she said callaway beat a cushion it to the punch in that regard the whole purpose not to the punch in terms of raising the inconsistent yes but neither side requested that the judge send the jury back to resolve that inconsistency while the opportunity was there because she said quote i'm not going to do that all right that's what she said i mean she said i'm not going to do that all right isn't that inviting the part district court judge actually decided the waiver issue or not correct and the only thing i find in the opinion is she says although it's clear defendant never objected to the verdict on the record the court is sensitive to its argument that it was beaten by the chad op is that what you view is her entire holding on this issue of labor yes it's a seventy to seventy two that's right and i think that conveys to the reader that she knew about the issue she decided what she was going to do about it she was not going to send the two ninety three are inconsistent that's clearly the case that they are consistent you've got a problem in in carrying that argument over to the only means of the other patents though it seems to me because at least with respect to some of those claims there's the with respect to the inner layer there was an additional requirement in the patents of the combination of ion so why can't we look at the verdicts on those other claims having the you know more combination in them and say ok well here's another reason that the jury might have found those claims not via so the verdict with respect to point five and those other climbs are not inconsistent what's your answer to that several answers first there were terminal disclaimers going back to the two nine three patent as a result of double acting rejection that says that the claims there or so extensive in terms of sco second there was i on them are bland limitations were never argued in the trial to the jury as a basis for distinguishing them from any of the other claims serve those i honor land limitations are shown in the profit prior art which is why they were never argued as being distinct so there is no basis for finding any substantial evidence to support an implicit finding that the jury found any difference between the findings and therefore validity of some and not the other that is why there was no j filed to overturn the obviousness finding on climbing five of the two ninety three there was no chain while fine that's not before this court in other words you have to assume that the implicit findings that supported obviousness of claim five of the two nine the question is what do we do about it what about the other ones you agree that they're inconsistent no no no no they are the the us the question about the glenn claims are these five other who made it so we made the argument that those are distinct in the way we phrase it i mean they're not we're not arguing that you can reconcile what the jury did and claim five of the two ninety three necessarily by reference to the blend claims debunking they're just different they have an additional limitation there was substantial evidence to support the jury's implicit finding that those claims were not obvious that that argument point five was obvious absolutely absolutely i mean to expand on for one thing this case is not all about just finding in the prior art in outer cover that has a shorty hardness sixty four with all due respect that's that's a cushion its spin on what the invention is for purposes of appeal these claims are to a golf ball that has a whole bunch of characteristics one of which is a an outer cover that has a certain s immersion the inner cover layer is an additional substantive limitation of one of the sets of claims there's there's a great deal of disclosure about it in the two ninety three patent some of the prior art references disclosed that element some but that i don't believe that's true as a legal matter and that the jury was certainly free to find and did find based on substantial evidence that the addition of the bland limitation matter for example  appeal as an obviousness carbonation but in the trial court it was one of their obviousness combinations has no land in the inner cover layer proudfit does none of the other references as it went in the inner cover layer the jury could have decided that for example there was no method motivation to combine specifically proudfit with the other references that a question i tried to combine it with and there was substantial evidence in the record to support that as we laid out in our brief so you've got a whole mortgage support of combinations that question it relied on some of which have this limitation some of which did not so if i call the waiver right so that waiver this is that we think there was a waiver and we made that argument below to judge robinson and i don't believe she actually decided there was not a waiver what she said was i'm sensitive to the concerns that a cushion it was beaten to the punch period full stop but then she went on to reach the other issue so if she had found there required an objection or a waiver would result so so for two reasons it actually wasn't clear to us what her ruling was number one his third circuit actually require an objection to be made when you've got inconsistent general verdicts there is actually having an injunction is to alert the district court to the inconsistency so the district court can cure it at the time before the jury's discharge but here she was made aware of the inconsistency right she should have done some she was with the request a sidebar to ask you to do something about it and the decision could have been different very if she had been faced with two parties telling her yes judge there isn't insistency and we didn't want you to send the jury how do we know that that could have been very i mean it could have been and it could have been a lot of things but it could have not been and we supposed to conclude that at some level you can't i mean there is there is a certain sense that you have to be there but even on this record it's clear she heard us out she turned to to our counsel and said  well you know what do you want me to do you do you want me to do this and there was met with silence by a question that and this is happened immediately in her own she said i'm not i'm not going to do that now if you push that had said judge we know you know we really agree with callaway that you really should you know send this back it's an inconsistency we can fix it now the judge may have made a different decision you can't know what i can't know but that's why we're over matters that's why it should apply here well assuming that we construe her l first of all i'm not sure that the standard is abuse of discretion of reviewing a decision of whether a party waived we've been objection or not if i think of that the many cases both sides have cited on this issue i don't think that answer that question is answer closed the thing off oh yes all right she's in a better position to know what she intended than we are right i can agree with that absolutely yes yes yes right look at him this could have been recent one inconsistent general verdicts which we have here that the framework is very clear that they can be left alone i don't think that's either you got a hard case to make that they can be left alone under some circumstances yes but the third respect it is and it's not it's not a trivial question frankly it's not one that any of us probably sees a whole lot of but i do believe if you look at justice stevens dissent in los angeles he heller if you look at the cases he cites the general rule see it seems to be reasonably clear that if you have general for it's as opposed to special factual findings by the jury one legitimate outcome is is to enter judgment on all those verdicts and you can leave the consistency oh well in fact this court it didn't really address th be a compromise or not because the law actually precludes anybody including this court from speculating as to whether it was or it wasn't all we know is it happened and the question what's the implication of that does it require a new trial  and you will not find a single case from any court supreme court any circuit court that orders a new trial where you have inconsistent general purpose that there's no such case and in fact to the contrary there are cases where it's left alone this this court has to point out two cases are there not on all fours factually but there's the mendenhall case which we cite it which the that this court acknowledged on appeal yes there were at least two inconsistency that could not be reconciled and yet affirmed the decision not to order a new and so we've got to figure out whether this is one of those situations we can't just say oh well we're not finding a lot of cases where they actually did we're a new trial we've been given a standard in the mostly case and we got to apply correct but the mostly inconsistent general verdicts under some circumstances but i haven't the draw i actually i don't believe it says that i think i think mostly is is dealing with the roger front and his deal in with if you have inconsistent season special girl employee nine b does not address the issue special for the cases of different different animal but my point will only is that mostly discusses both special and general and the rules are different for special verdicts than they are for general verdicts and in the case of a general verdict one  outcome is to affirm the judgement not order a new trial affirm the judgment and leave the inconsistency alone if the mosley standard sas well i don't think i don't think mostly yes so far as it goes it up mostly sets out  and with all due respect i don't think that can be the standard i don't read mostly to say that but we know from this first of all we know no one knows the answer to that question obviously we can't know what why the jury reached the result whether it was a compromise they were properly instructed there's been no objection to the jury instructions or whether they made a mistake or whether there was some other reason that that none of us has thought of in the supreme court in dunn says you can't engage in that exercise it's not appropriate because probably because  there is no answer and there is no way to know basically if there is no seventh amendment problem and they sent the men a problem only or only arises if you've got special verdicts that conflict with one another because then you have factual findings that are conflicting no court can then resolve that conflict consistent with the seventh amendment that's when you have to order a new trial or do something else but if it's a general verdict and legal issues like obviousness that's a different animal and it can be left alone in those differences are reflected in the forty nine itself if i can judge that you asked a question at the outset i'm not sure you've got a clear answer to what i want to be sure you did on this the test all evidence yeah so  judge robinson excluded for two separate reasons the first was that it was originally offered through the vehicle of an expert dr mcknight we brought a dog or a motion saying that she should a conditional rule and she said it to the it to the extent you want to offer these you can't get them into evidence through dr mcveigh ok there's no foundation if you want to if you want to try some other way basically i'll deal with it when it comes up and they did subsequently try another way a trial through mr dalton and then was a straight forward for all three analysis you have a horrible three analysis would necessarily apply in the anticipation that other words she was dealing with the obvious and procedurally on the facts of this case that might be true because anticipation was decided on summary judgment we're talking about the exclusion of evidence at trial the error assigned by a question that is whether that evidence should have come in at trial and it it's an abuse of discretion stander and i don't i don't think particularly given the showing we made it's a close call in this case i don't know if there are any other questions the court has i just want to touch on the n on this is not some combination patent in the sense that you've got an a and a b and a c and if you can find them all separately in the prior art and have some motivation to combine them you know we've got a we've got a k s r situation on our hands this is a situation where a single thing is claimed which is a golf ball which is a complex structure that has multiple parts which interact with one another and we won't go through it but we laid out in our briefs all the evidence showing the interaction between these layers on the balls and how complicated it is so you can't say that even if they could find a construction with the right hardness of the prior are in on the moderator seven fifty one ball ok construction so if you could theoretically peel that cover off a mile or seventy five one and put it on the clean construction what would the harvest be nobody knows so so it isn't the case that it in question that has set this up as if all we have to do is find of the summary judgment record that established that the molecule composition was fifty five d well below the sixty four d requirement this is not a case on obviousness works we're seeking to link together multiple references this is this is the most straightforward obvious in this case there can be the proud that hat unquestionably prior art as everything in these claims except a polyurethane cover contemporaneous with proudfit came woo woo on a cushion that researcher made the the castable polyurethane compound that is clearly by her own statements in her own patents suitable for use on a solid quarter by all profit in as a solid core all that's the connection that's the teaching suggestion motivation to combine if we were before k s r that meets that the  now you have to also understand that this that when when they're talking about other considerations of obviousness here which i think is that is a big issue there there is no nexus between these supposed it other considerations of obviousness what this patent is is a very broadly claimed landscape of a poly your think of a couple of examples to learn end of the outer cover range is ten thousandths of an inch that's less than the depth of the devils it couldn't possibly work the upper end of the range is seventy thousands  thickness of the proview one yes the probie one is a great golf ball and will be for a long time to come we hope but the fact of the matter is there is no n correlation between what a cushion it did and what the patent discloses and probably a primary example of that is that the callaway bob the rule thirty five supposedly practices these  it wasn't a ball it was two balls one for distance one for spin and feel with a softer cover so the idea that this these patents were the holy gra or the solution to anything is a great mis characterization that has permeated this case it's not it at all there is simply no nexus the district court or relied first of all in to in denying our motion for judgment as a matter of law of obviousness on a requirement for a motivation to combine that's not the law but there clearly is a motivation somebody here secondly she relied on the sure sixty four requirement and we have shown in the record where that is is rampant in the record and i don't think i'm overstating it it was in the balance that mr dalton in his testimony and finally she explicitly did not consider our countervailing evidence when she was determining whether the implicit underlying findings to obviousness of the jury had substantial evidence support and i think that's fatal to the determination of obviousness and denial of r j model in this case this is a very analogous case to your decision and boston science side met where the same district court basically went through the same exercise now when this court granted or denied r j mall in this case granted the court did not have the guidance of that opinion but the last is as stated in the boston scientific simon case this court was obliged to consider all of the evidence not just plaintiff's evidence this court was obliged to consider what the references say not a conclusion or statement from dr rice than that there was no motivation to combine we know from your pharmacist and case that there is not sufficient evidence to support the verdict there is not sufficient evidence to support the verdict in this case that determination is a de novo review by  the impact of the supposed commercial success evidence as a secondary consideration in a noble review by you in terms of the weight that you give it and we said it would submit that on the facts of this case you should find that these