pleased to have her with us one of her we have six cases on account of this morning three thousand cases run from the district court the morning your honor is made please court i like to start with two issues which i would like to characterize under the title trial by ambush idea ends with the if they were going to show and question twelve in the verdict form that's one of my trial by ambush points the jury found specific combinations based on four patents and they those those  footpads did not include moria the army bases from worry of was question twelve and we submit that question twelve is not a proper basis that doesn't provide substantial evidence and you are entitled to a new trial on it the references on that list were never applied against the claims including morio the references were never analyzed they were just included in the record not focused on whether or not y and kaleido was e j ma case they focused on whether or not there was any direction given to the jury on in connection with references the in no genetic scase about the of references and with no analysis based on the list they are the party just said person ordinary skill in the art would know how to deal with these references and in each found the specifically stated references under the claims find obvious question eleven involve four references and our position is  backed by what i said made it sound reasoning that the references themselves teach away from the combination has to be clear here you only are making specific organs with respect to for sand underpinning so that the floor would conform to the overlaid panels that were put on top of it and we submit that that teaches away from substituting wo combine a couple of other references which have the same the same problem and that for the same reason there's a teaching the way there's another combination references in which being combined and in fact your argument with respect to an evil man of one thirty two inconsistent with the notion that in the prior art wouldn't teach  to a combination of two references and the suggestion is that whatever it is suggestion is less modified dacre to make it a tight fit i'm saying whether people know about tight fit or don't know about tight that baker says we don't want to type it so i don't see how you can combine references whether it's based on knowledge of a person skilled in the art based on how to make a tight fit or or or otherwise when baker says i don't want to type that i want play i want the panels to be able to expand in warm weather and humid weather i say that country indicates combining it with a tight fit it makes no difference whether it's obvious or not obvious i have a tight fit for that reason now the idea if there are any other questions are not obvious as i'm glad to deal with them but if not i will go into infringement infring right or there were claim constructions that were made and the jury and the court instructed the jury a certain claim constructions it did not and it instructed on tom but it went only so far that you both agreed to give this question of the jury as to you know how they were constrained and so i don't understand iran or the reason for that is that's question three at three a question whether there was a tongue on the accused of isis through f said that is the basis for your analysis of tom that was a check on the jury to make sure that the jury by the proper claim don't know why they both agreed to do it are i'm saying is that it serves a function if i you have as a block box and if you ask the jury is is there an infringement then you don't know what the jury thought you don't know what its  answer i mean the to the court is post tell a jury what the client instruction is not to give the jury to alternative point constructions i ask them to choose one or the other it's very strange i don't understand how this your honor it may be strange but it happened and i'm  hearing that the tongue was the entire side not just the piece that extended the on the top edge and with us having taken the same position there was no errant basis for for embellishing that during the trial they went ahead and they took you object to the jury being given these alternative construction no we did not object to be that big evidence the alternative claim construction and all i'm saying is performs a function wise or not  e it performs a function function is did the jury follow the testimony of the arguments of allies that it's only the piece that extends beyond the top edge or did it follow the evidence that show that alec took the position in the martin hearing we took the position of the martin hearing the patent is replete with references to tongue seven and group six there is no reasonable circled the edge of the little part that projects above the top edge and said that's how i use it my daily work and then they had a parade of other witnesses who basically said that's how they use it in their daily work the issue is not how they use in the daily work the issue is what this is patent say you cannot read this patent without concluding that the tongue is the entire element which includes protrusions not only the on the top edge but which includes not even inconsistent because it says that's how they do in their daily work how they do in their daily work should not trump the intrinsic evidence even if it wasn't miscible and all i'm saying is the case law doesn't forbid use of understands the pattern says one thing when witnesses depending on the context have something different so the court told the jury that the pack is a patent that counts it's not the weight of objective mission asserted not those on construction issue doesn't issue in terms of we didn't challenge it it's clear that there was a challenge based on the us the fact that the question went to the jury isn't doesn't create a waiver situation as i said it provides  check on whether or not the jury followed the court's guidance and the court gave them guidance on tongue generally and there was evidence as to what the patent said and so the jury was given a question which is not  irrational you're suggesting that perhaps the word should have done differently but it is not an irrational harlan apps that it's forbidden to give the jury instruction we've made that clear it's forbidden it's for the court to do th your honor the court the court didn't give them a claim construction issue defining tongue in the jury instructions and then the question was posed to the jury as a completely it it gave a construction and there was evidence as to what was said at the mark when hearing that was evidence as to what the patent taught and the question the question was did the jury follow and in fact the judge did judge tell them the  ambiguity this judge was presented originally with are human that based on the first that which has an earlier filing in which doesn't show any of these other than on the tongue in the original are on that part which sticks out from the edge but also in that earlier that the only thing that shown is a separate piece lewd to the edge and that's what they call the tongue in the groove in the first pat so consume a lawyer you know i think it's just you know we the judge was resistant to engage and in continuing and never ending construction we would back him three times and at some point he said that's it done what i think is enough and the jury was was asked what's you know what are the protrusion is it is it on a tongue or not and they used the judge also instructed the jury to use the ordinal meaning for t also a claim construction issue but it's all about the word one and i think that that's clear and i don't think but i don't think we have to get to either of those issues because we've got the liberty in spa here we got gloomy but the getting to the normal cat the file history in this in the record here the final history of shows that the examiner rejected that may be as a general rule but we have so many references here we could have used you know but the point i'm making is that the more you know reference was relied upon by the examiner at the very beginning of the problem is that doesn't seem to have been relied on but the jury well but it's in the record and you can rely on anything in the record the examiner the only response to the rejection on the morrow is to say as a matter of law it was obvious and and make part of termination to the underlying buckland the question is is there substantial evidence in the record that's the question and i think not only is there are the things you have to question if the jury if you terminations only jury determinations th in the ninety six had everything in claim one of the nine seventy pat he said it had everything except the tag but how does not requirement these claims and so there's there's another couple of examples of  our product which is an earlier version of the jews product it's almost exactly the same as the accused product except we remove the slanted locking service and made it work that people like product was studied by the inventor where if anything that he said wasn't accurate or true where was the the witness to deny that they did come so that the the derivation argument i think not only takes  these claims say without blue but a representative would make this invention or make a joint watertight and that's what mr irvine came and testified he said in his in his memorandum that he said as holding water for three hours that's a rigorous definition of fact and he did that based on the nine seventy specification and they accepted that they didn't they have not challenge the judge's ruling on what t what that means is that's a that's a high bar for us to meet both for invalidity but it's also high for them to meet on infringement now they say they want to say that the proton p c t doesn't show rubber stripper now we believe that pio because it's rubber suggests that's how you make something water waterproof and as the judge find it is rigorous wet there is nothing in th specification about how to make something that will actually hold water and circle but they're sort of put in between either either big lose on a needle because they haven't shown anybody how to make something this watertight or if they want to live by the well most or standard that this prior are certainly a substantial evidence to meet meet the obviousness standard well in the case of the put the p people was not watertight he admitted it the cites are just give you the cites or oh are one three one nine and one three two  six the other basis for finding that there's no derivation is the forcing adjacent panels together we submit and we've explained it in great detail in the brave that you look at the assembly during the process the present tense is used and not after the process and if you use during the process there is no evidence that anything was given to per go right the process