have five minutes for rebuttal correct ok you can start whenever you're ready thank you please the court this court must for verse to grant a summary judgment of infringement in this case if it is to remain consistent with this court's decision in the cross medical products case we're close before you get into that could could you help me to understand what we need to decide in this case there are issues of infringement there are issues  was not infringed as a matter of claim construction management analysis do you want us to go on and decide the and i quibble conduct in obviousness issues anyway your honor the infringement issues do if it agrees with us with respect to the infringement issue is addressed claimed ten lives will it with respect to that it can be determined based on just patient it can be determined based on obviousness both of those  with respect across medical i'm not going to belabor the point because a line did not address that case in their briefing and we really see no basis for distinguishing prost medical from the of this case and in fact cross medical was in a fuel from a decision from the very same district judge that issued the decisions in this case he employed the very same capable of analysis and say the same authority from this for in doing so as he has done in the decisions here but one what i would like to may is it the result here should be somewhat different in the sense that there are across medical case there were facts suggesting the possibility of an inducement plan and in this case that is not true in this case there is absolutely no evidence of any orthodontist  only reverse the district judge as to his findings of infringement but should reverse the district court's failure to grant summary judgment to a way or both and i think this poor very recently  ahead move for summary judgment finding that there was no one friend under sentence and then point it was required that a wind bring forward all of their evidence upon which they intended to base the claim of infringement so i think really crossed medical really answers questions most of the questions that are before the court today like to turn them to the issues thrown in claims of the five of the five for a path which the lower court held was in fact anticipated by the use of dr ray in fact claim one was also admittedly the practice for one of the that the apparatus include instructions that the patient has to wear the appliances in the order marked now we put forward evidence oh a number of fire are that show instructions in various contexts including instructions with regard to or use but with respect to practice by dr truly a doctor truax used the same kind of invisible plastic sciences which been known for decades but he used appliances that were of different our regulations that we cited did require instructions in connection with the use of this type device that's the obvious cells coming back to the interest patient and dr truex he actually contest a wind did not take issue and hasn't taken issue on this appeal with the lower court's construction of the term geometry but their argument implicitly does because their argument is that geometry does not refer to something such as thickness which three dimensions is certainly an aspect of the lines points of planes of the device but rather they argue that what was really meant here can have a shape and they quite simply is not what the construction of lies and secondly it would be in a improper construction if that were the construction given to the term court arrived at its own construction which at this point in the case nobody contests and that is a figure characterized by points lines and planes to burn your indie your robot off oh do you want to know  except the instructions right with respect to claim ten yet the lower court found that the other elements were present correct ok and you're not contesting that on appeal right i don't believe that we have the right to  time so there would be no reason to provide instructions on the order if you there may have been a reason to provide instructions on use and care of the appliances but he did not provide more than one appliance at a time so there would be no reason to provide instructions as to order but why isn't supplying instructions obvious from the from the general practice of supplying instructions for all kinds of medical supplies things like that i think providing instructions generally for the information the patient needs to use the device it would be i guess but providing instructions as to order of you when more than one appliance is not given to a patient at a time is not  are the three things were supplied under this patent were supplied at the same time why isn't it obvious to instruct the patient about the worth of use of the three things that the patient is give that are very common and apply them to the field of the patent and in general when you give things to people you give them instructions why why isn't it obvious to give somebody instructions when you give them these three retainer it perfectly obvious to do that and you know without any evidence that it was done before i believe that someone could provide three appliances that are marked to indicate were used without also providing instructions regarding the order of use presumably an orthodontist could provide three appliances that have red white and blue and you can follow red white and blue but to also provide instructions to tell the patient where the first appliance for two weeks and when you have worn them for two weeks then you want to go to this next time we just deal with your suggesting that some of that is we just leave people sort of totally up in the air here these three things you figure it out i just don't believe that anyone was doing that before the patent was filed on and if we look at obviousness as a principle the one thing that we need to take into account from the this court is that when you have less technologically complex inventions it is even more important that you have a rigorous application of the obviousness standard we have not seen and rigorous application of the obvious good standards in this case we have to look at the prior art the scope and content the differences between them prior art and the invention issue what about the obviousness thing with respect to point b so i understand this has to do with with dr raines he had a number of different times that he tried he had not arrived at a olution to the problem of how long do i treat this patient with any one appliance  you anticipatory it's because it's twenty one days rather than twenty three right right so the changing from twenty one days to twenty days is an obvious if it had been obvious your honor why did dr raines use twenty likely to go to shorter and shorter time frames we're not talking about you know starting at three weeks and then moving down the standard was four weeks but what about this single package what about plame was the other p utting them in the three things in a single package is an obvious not if you look at the admissible evidence in this case of prior use if you look at the prior art and you apply the standard  that patients were looking for a shorter less time and not worth the donek chair more free down i know what i'm talking about those specific things what's the what's the evidence the commercial success had to do with putting them on a single package finances and reducing chair time between you provide all three appliances at one time the patient does not need to come back three or more occasions to receive each of my also works with one even a single p packages at one time when you could find them well i don't see that there's no evidence in the record of providing three separate packages rather than a  need could be less than twenty days could be less than twenty one others might be more she could be greater than twenty one do you think that the the amount of movement you are trying to accomplish with any one appliance dictates how long the appliance page eight or ninety six to four ninety seven this is an article by doctor a practicing orthodontists this article was published by a away this article addresses dr moles treatment of a patient with red white and  indicating he is delivering the retainers cation at single time under patient instructions he teaches in the third sense after two weeks the patient will change the white retainer and two weeks later to the blue one if there was any question about dr miles actually practicing the patented method we can look at the mild tooth now alignment case in the top right page four ninety seven which shows the pretreatment and post treatment after treatment with red white and blue he states under the post treatment the patient wore upper and lower retainers for six weeks to correct crowding this is direct infringement he's an orthodontist who showing the treatment that he accomplished with red white and blue this is direct evidence that he practiced the method for use the appliances and then we need only look at the intent to induce which really is overwhelming if you look at the evidence submitted in alliance response a brief we have on the packaging or how in a way sending boxes of appliances to the orthodontist sending within that box packaging three appliances for a single large red white and blue in a plastic bag we have a way of marketing material saying receive these appliances from a way then for the most reappointment flexibility deliver all at one time we have mr fuller airway stating a reasonably sophisticated patient could receive all three appliances from the doctor on the question of timing two to twenty days in addition to dr moles article we have mr fuller's testimony acknowledging that a ways literature supports appliances being one for two four weeks two weeks falls within the two to twenty days we have an f d a submission by a away stating each of minor is worn for a two week period at eight zero nine ten that is intent to induce and dr mole d with respect to that the capable of claimed instruction yes i do believe there is evidence in the record that would support claim construction of capable for the  supplying the appliances in a single package the patients we look at the key pharmaceutical case there are stand some close similarity for the two twenty eight i think that is more supported to be capable of infringement in looking at some of the cases that have functional limitations as well as to this material for ninety six for ninety seven the mole's article that dr moles been called isn't with us had you been deposed and he came in and said that yes i gave them an appliance and after two weeks i gave them a second appliance and after two more weeks i gave them the third point that would be evidence from which they could argue direct impression that would get them to the jury this does not this is inadmissible evidence for their purpose and even if you take at face value what these pictures purport to say there's nothing to indicate that the  patient who wore the upper and lower retainers for six weeks or each one of those retailers for two weeks or three weeks or whatever we do not know that mr mole's actually did this is his period his testimony was that he used the appliances in a period from two to four and the reason that the lower court did not find that that was sufficient for purposes of invalidity was because he determined that the record was insufficient to establish that each of the three appliances that dr raines used was in for no more than two people who it was in for a period of two to twenty days in other words two twenty day period has to apply with regard to each and every appliance that's used that's what the law reports construction was and that's not disputed here so that was a problem so when it comes to the issue of obvious dr raines had done it with regard to individual minds as we just didn't have quite the right testimony from him that he did it each and every one of those lines and so the court at the lower court  disregarded that testimony from the standpoint of invalid with regard to obvious dr harold used at least two appliances that were made in fact made by a away and given to dr harrell and those appliance were sciences were marked indicate their order of use they had not implications mild history for the parent application here the eight nine three patent the patent office following in their very first office action that it was known to use multiple appliances in fact in that case the they had