inwardly and to determine the elevator w ratio you need to know among other data points the number of pedals the specific dimensions of each pedal in the under form state how wide the gaps are between the pedals and perhaps most importantly where the root ends are for so very fair question your honor so i think it's two different things number one is there was some confusion between whether people were talking about caution versus a hypothetical and that's an important distinction that is not a distinction without a difference and also there was some confusion about what the actual testimony said there is no dispute that with respect to the a over b ratio if you're taking a hypothetical tampon tip with with the prior art hemispheric will shape and you're not changing the location where the expert testimony and he correctly outlined with respect to ever be with respect to l over w it's a different entirely analysis entirely because l o w and a were b are not the same thing so as i mentioned in my opening remarks  w is dependent upon the number of petals it's dependent upon the size and shape of those pedals and whether they're all symmetrical or whether they're different it's dependent upon the length of that curvature in the under form state as opposed to the straight state that it would be is dependent upon and most importantly it's dependent upon where the root ends of the pedals are which is not necessarily the same place as the inflection point so if the root ends of those pedals are in front of the inflection point then are going to have a shorter l which of for me because it your honor it depends when someone is asking a hypothetical you have to have assumptions and so when mr sheldon our expert as well as expert was being asked of this deposition about certain shapes  they were and we addressed this in our brief your honor we i thought we addressed it fairly clearly fairly clearly that there was some mischaracterization of what mr sheldon actually said and whether he was referring to cotch whether he was referring to a hypothetical hemispherical shape that's being modified and that's a fundamentally different thing right because one is hypothetical one is prior art and mr mr sheldon never testified that i mean st of all what he said about cotch was essentially i can read i you exactly actually he says it looks a little more elongated than a hemisphere that's the sum total of mr sheldon's admission with respect to what teaches ok if you if you then move from cotch to the hypothetical and you say ok so what does that mean if you're leaving if the inflection point stays where it is and you're moving from a hemispherical tip to an a long gated something more along it is that necessarily will mean that the a over b is going to be less than one again we can see this mr sheldon can see that but the l over w requires five or six different assumptions in order to understand what that range is going to be and the pattern itself has i mean the pattern itself contains data i'm sure your  looked at it it's the it's the table in the pattern that says here's here's five different examples of different different shapes that they tested essentially and two of them were outside the range of the l overdubbing the claimed range of the l a w those were two that were rejected based on their performance and there's no such data for the a the a over b ratio in the seventy five pattern but it's right there in the overdubbing you can find without too much difficult difficulty l over w ratios the fall outside the claimed range and mr pedals and the lone gaited for a little bit even a little bit one would get l over done greater than one and then he cites i assume your experts testimony correct is that an inaccurate citation or is that not answering the question the district where it should be answered i think it's an accurate citation but i think mr a by and accurate i mean is that what the experts said the expert mr sheldon was making assumptions whether they were to do it or not he's making assumptions based on on the questions hypothetical i think the hypothetical put it in the context of a bit of a baseball half a baseball writes of the hemispherical tip ok so mr sheldon didn't explain at that moment that he didn't ask well does your hypothetical want me to assume that there were assumption is that the four penalty for pedals are identical or the other symmetrical which by the way in cotch they are not conscious for pedals that are not perfectly symmetrical and the reason we know this is through the through mr holes testimony and  to the naked eye we're not given of course with the design pattern so we don't have the benefit of a specification telling us what these what the measurements are dimensions are and whether it is to scale but what college teachers us is that those are not symmetrical panels you can see virtually nothing by itself i would suggest that cotch teaches almost nothing and is largely irrelevant to the disputed hand because it does not show its dimensions and it does not show us scale it does not give us the ability to conclusively or precisely or accurately infer dimensions and measurements which is of course what the primary thrust of bads arguments are today is based on their premises it may not show dimensions but it does show a structure that has percent difference in our expert never opine that there's a twenty percent difference our export of pine that he doesn't know because he doesn't know where the inflection point is on college and that's consistent with the law which is that when you have a drawing of designs or whether it's a design patent or utility that doesn't have the benefit of dimensions or scale or a specification explaining what those could reasonably be inferred to be then you don't have the ability to measure this with mathematical precision and therefore it's it's incompetent evidence for that purpose if this were a case where we were trying to patent a a finger grip with five or six concentric circles around it this and then cuts would be able to teach us something about the prior art but with respect to mathematical measurements caution isn't teach us anything that resent some sort of unexpected resolve or something what is it about these ratios that is of any fashionable consequence ok there are just just to clarify what i'm trying to get at here dollars inches in length and that's my claim the patent office rightfully would say well that's not patentable consequences just a matter of design choice unless you can show that there's some sort of used for the purpose of insertion into the human body and so what we're talking about here is something that where the inventor said that the shape of this tip in their view in their considered judgment as persons of skill only art and they have some data in their pattern to support it at least with respect to the elegant ratio they viewed that changing this shape of the tip would result in less resistance and less discomfort during the insertion process and it was a so that's the utility of it your honor ok so  its function or runner in the in their view was that it provided less surface area the shape the shape of it was was signets sufficiently different from the prior art that it created a different experience upon and less resistance and less discomfort upon the insertion process whether whether it's an extraordinary result i don't think it i think is beside the point your honor it was their judgment that this was this this product had utility it's clearly served its purpose and was functional and in fact as well has built a business around it and the place explore something with an eighty hypothetical i'm reading from appendix thirty one own online and that's what the the district court cited and i believe nine that you were just asking you about there's nothing hypothetical about these questions and answers the question otherwise we're here i'll skip over the the colloquy ok and then back on to sixty nine you're specifically asking me about that tip was the experts question yes about the tip ok specifically about the tip the more along gaited than the hemisphere and the question was that's the question and i think it looks more along gaited than a hemisphere there's nothing hypothetical about that he says going on and that's relying on the knowledge as an engineer able to read isometric trying to correct undisputed well i think the point that you raised is right on the money their position really from the get go is that cotch is a clean slate it has no racial no ranges no ratios it only has a single value but nobody would know what it is so it provides no information it's as as if it were a blank piece of paper and that's obviously not the case so the question then becomes what does koch cotch admittedly shows for paddles and then they really go through what i think of some tortured analysis about saying well if they're really asymmetric and their expert says it appears to suggest asymmetric he doesn't say it has a symmetric titles and keep in mind they say that cox has no information if it has no information how could it be asymmetric it's nothing according to them so i want to hand it it shows asymmetric pedals on the other hand it shows provides no information both of those statements can't be true and then they say that th devastating admission because our expert mr hall tried to use a computer model and they said well did the computer model shows that these these points don't line up they say and i think the rd statement of issues in this case that the computer model was defective but then they're relying on the computer model to show that the conch pattern which they say has no information is somehow inconsistent and so the bottom line is  there's no evidence in the record here that any of these things have any critic ality associated with them and there's no one expected results so this is just routine day to day engineering its optimization that any number of cases that the panel's been involved in say is not patentable you can't patent point eight and there's a statement in in the district court's opinion and in our papers where mr kravitz admitted that there's really no the sanction between point seven eight point nine in terms of a b and the l w ratio is just a form of optimization you don't want to have the have had to be too long and skinny because they become too flexible and they would open prematurely and you don't want them to be too wide because they wouldn't open at all so it's a question of where do you find that point and there's no magic there it's just routine day to day engineering wor to say that conch doesn't provide any information but it does have a symmetric tattles so i can go on but i mean that's the nub of their argument is that cotch doesn't provide any information but it does provide information to them so you know the the idea that that a person of ordinary skill would have come up with these ratios is really not supported by the evidence and i can go back really my my presentation is going to start at the beginning of all this where tapering and there we cited cases from decades ago that said it's just it's just a mechanical expedient everyone knows what tapering is so you don't need point is critical so we've been talking about the ratios whether or not they're critical the same is true about the inflection point there's nothing no evidence of predict ality for any of the inflection points and there's nothing in the  semantic distinction ok we saw the picture of cotch it's long dated it's tapered it's bullshit whatever it is you want to call it that's what it is and we know based on that at that a over b is less than one so you can call that a range or you can call it something  else it's really just a semantic distinction it doesn't really make a difference if it's called the range of it's called a single value we know that it's less than one and then the question is if that's your point in the in the prior art what does a person ordinary skill take away from that it's less than one and again they've said that there were there less than two dollars as a range some not quite sure why less than point one would not be arranged but again it's really just a way to refer to what everyone can see by picking out cotch and the same as i just said that's true with respect to the right if we all agree that cotch as for pedals and then there's this what i think is an artificial dispute about the size of the pedal s it has to have an l w that's greater than one and that's just because it's it's it's longer than a sphere once that happens for pedals then you get an element of you greater than one and where you stop with with the l again it's an engineering exercise everybody knows if you make it too long it's two point the it's uncomfortable and if the pedals are too long and thin they become unstable and that's in the burger patent that we cited in our brief i think it was page fourteen if that was just and i mean we can we can talk about you know that the prior art the patents that we've mentioned there's also evidence that was not technically prior art but she was working on this technology in  five playtex itself was working on this a few months before the priority date and so those are necessarily public and honestly prior art but they are evidence of state of the art i think is one of the specific statements made in the district court case was similar to the range year right the prior art range i think in that case was less than one hundred and fifty dollars parts per one million of alkalinity or something and then the claim was less than fifty and in that case and this is what judge jordan found the claims were the part of the district judge and i think it's a mistake i think he may have used the word range perhaps incorrectly but the fact is that cotch did have an l over w again as a matter of  simple we've all agreed is grid grade school math you did have an elevated w of greater than one and once that's greater than one it's within the one dollar to two dollars range and then the question is what a person of ordinary skill in the art stop at some point the answer here that explains anything that's critical or special or unexpected or anything out of the ordinary i agree with that the l over w to take a step back means it can't be more than twice as long as it is wide and that's what they've decided is a place to stop and it could be three times as long but then the point the tip would become to point to the flood the petals would become too narrow and they would open prematurely the product  fall out shipping there's reasons that you don't want to have long skinny pedals and you know people for decades were aware of that and you're absolutely right there's no evidence that these numbers that are frankly quite arbitrary provide any critical any criticality or any unexpected results and that's exactly what the judge determine and i think she was absolutely right so there are no more questions i think i will just sit down  but they're certainly not arrange and someone says to me i know i know you live in a house on a particular street i don't know which house it doesn't mean i live in every house on that street right it means i live in one house still you just don't know which one it is so there is no range there was never an invitation to go down the cases and it makes sense in the context of the range cases because if the priority is a range but your patent claim is subsumed within that range then you're getting a head start right you're getting a running start on your invention and that's when it's appropriate to put an additional burden on you as patentee to explain why do you deserve this patent when you had the running start in the st place that is not this case and the rate he judged jordan flipped the bird and he presumed this patent was invalid and force us to prove that it was valid he flip the burden on us and changed the presumption of validity to a presumption of invalidity and then to compound that error he overlooked two significant secondary considerations of obvious factors right specifically licensing as well paid a one million dollars upfront licensing fee for the seventy five pound for exclusive rights to it and then built a business around it a couple of years later copying indisputable evidence in the record your honor we have their emails you have them in the briefs in the appendix they cannot deny in good conscience that they copied our just says that they intend to develop a plastic applicator to a similar shape similar to your product to the extent possible considering the existing restrictions is that that's money sentence that's the money sense for that but i'm not sure i find this compelling evidence of copying how about the box the box they sell their product in this is compared to plates export that has a picture of our tip on the back of it that they're emphasizing they copied our product if they want didn't they wanted our tip i mean this is evidence that the district court i think that a really good job a commercial success and found that even if you did house of commercial successes so clearly obvious why wouldn't that same argument apply to this very minimal copying and your license argument to me sounds frankly strange because it's not a license you're not licensing this patents to other he took a license from somebody else and that seems like an odd kind of license of that's what i haven't seen before i think it's i don't think i don't see why it's any more compelling or suse many less compelling than if we had license the patent others we were paying a one million dollars to have the exclusive rights for this tampon applicator tip shape right did they also may be a big company that decides well there's this patent out here and it may be a problem it may not be in the scheme of things any say a one million dollars but if it's a one billion dollars over a long period of time isn't it maybe that's just extra protection