what became of the functionality arguments were that certain elements certain components of the seven eighty patent were considered by the markland to be primarily functional purely functional in the jury instruction phase the jury instruction was presented by the parties did not include the language that we have concerns about which states in a purely functional features should not be considered in determining infringement  till elements of the purely functional feature should still be considered for example isn't that what the second sentence and the jury instructions says the second instruction says you may only consider that one of the two features of the claimed design or primary consideration are concern with this instruction particularly the time it was presented was the corner had not intervened ruling that there were any functional features of this and if they could hear in a functional purely functional features of this design the court actually stricken that the expert  in advance of trial that was being offered an functionality the court had not entered a ruling at the time when that structured finding that any feature was purely functional and during trial there were there was testimony presented on these two functional feature exists that's primarily an exclusively within the jurors the jurisdiction of the district court does not taste in the district court pretty great deal of latitude in odds on an apple what this panel stated at the con was we've explained however that there are a number of claims school issues which may benefit from a verbal or written guidance among them the distinction between the features of the claim design that are ornamental and those that are purely functional yeah i understand i've quoted you as something more like just guidelines not mandate compelling when is it appropriate time for district courts actually kind of jump then and and come up with some type of verbal formulation as to the scope of a design patent or the meaning of certain these cases there is not been a suggestion that the question of functionality and the question plain construction should be sent to the jury there was no direction given to this this jury on what is a functional feature under the law of this court functionality of peace in the minds of people that are walking the streets is very different from the definition of functionally the office assuming that that was there is there any anything that indicates in the record that the jury rely that a person of ordinary skill actually just an ordinary observer would buy these products believing that they are the design patent there was no evidence put on importantly by markland not given to this panel shall not be considered in determining infringement that means that functional features are now to be considered for purposes of considering anticipation do we know that doing just to look at the pictures and not follow the yes instruction we have to assume that the jury did follow the instructions as given and the instruction quite clearly limits this consideration of functionality to the question of infringement and has now created a standard where we've now iden that's precisely the arguments being made by martha that is precisely the argument that was made by the judge in denying our motion for a new trial the judge said i don't need to worry about instructional level because it doesn't apply that that this thing i've ever seen well i think frankly can't remember back to how that verdict form was proposed that was proposed by the judge or by the parties i don't recall i don't i didn't see any indication in the record that there was an objection to that verdict form there were i would say confusing jury verdict happened it's because the verdict form forced them to find an infringement before they were allowed to find invalid well in this particular jurisdiction that's been my experience the judge does not differentiate between those  ruling unethical and in high point design and high point were involved to slippers in the prior or as well as the claimed slipper design the differences between the prior art in that case through it and the seventy patent involves a flexible attaching strip the john reference specifically excludes and disclaims the use of the flexible attachment strip in light of high point there is no way that  flyers demonstrate is at a high level similarities and with this court found it high point and ethicon is not simply look at the product category the fact that it has only these the fact that it's flexible to determine you said in the read brief that in fact there that that testimony from the other side mr chen was that anything essential a that was a running strip a flexible strip with lights would would infringe th i believe that was their position yes although he stopped short when i asked him about our castle say that he said no he didn't think that that would be the case i asked that question because the ele the up my client product the jury had the flyer and the jury had the catalog i brought the catalog itself and the jury looked at the entire catalog looked at the pages that i excerpted they looked at a one page right let me let me ask you directly is eyes see that the judge john j moss seems to be a little nervous that perhaps his injection of additional sentences into an instruction that had already been agreed upon was a mistake and that so he says his real analysis as well that eleven didn't really affect sixteen by way of instruction and they found in test patients so that the end of the impact but i mean you're talking about a jury instruction that that's just a few pages away from the other one but how can you say that this jury wasn't considering both i think i can say that with confidence your honor and i'd just like to make that argument if i could because i think that's a single most and the alley bees were or were facing those were the very elements that i also argued were functional but in i do in part of my problem i mean that right let's begin with that instruction fin infringement and put aside the question of whether or not that affects anticipation and i understand you think that that all of this could be irrelevant if we just say the anticipation instruction was fine and yet it wasn't the change the problem is when you look at that instruction it's arguably correct the two lines the two sentences but it's also arguably misleading and then you look at in the context of your closing argument and you invite them to be completely misled you actually said in closing argument if there's anything that serves a functional purpose you can't even consider it you have to take it out of your consideration of born a mentality and that's not the law is it and that that's part of what they're planning is part of the design right they are flavor and so you said you have to actually take those out of your consideration and get that part of the design well i met your honor was the fact that they were forward any way shape or form that functional elements should not be considered the terminating anticipation he never said that and it when you look at instructions fifteen and sixteen the word functional that's not appear in either and this court but in that case the defendants who had committed this heinous crime in kansas had gotten and then structure that all aggravating factors during that that's the penalty phase of their trial work had to be proven beyond a reasonable doubt with respect to mitigating factors the judge said that the jury you can consider any mitigating factors that you want that's only set on appeal in that case that whenever you're looking at your instructions you're not you're supposed to take each one individually and not look at them as a whole in light of the argument is that it means that would that would be taking this report has over the years many times  was interesting or whatever it was that had an ornamental dimension that the jury could not consider that in fact i argued that by closing it with respect to infringement that my client product in terms of the appearance of the l e d the shape the spacing and so on was different than the seven eighty pat that's the reason why we got a determination of no infringement his opportunity to raise a question about the verdict when it was deliberate that the point is that he's trying to say that's where the prejudiced lies with faulty jury instruction that the jury instruction compel the jury to come up with this logical result that this killer speculation on his part which he is under the circuit or he is not entitle to an aging at speculation that he could have raised when the judge blackbird read the jury verdict if he thought it was inconsistent he could have raised it with the judge judge blackbird did not have to go to the jury and say why did you have the opportunity to do that or he could have said one of the parties contends that but mr bradford didn't say a word more and i didn't say anything because i was completely satisfied with the verdict he has wa this and the jury verdict were completely accurate they were agreed to by the plaintiff in the case that if you look at get those two sentences that he added at the last minute well i have raised the issue of functionality and i had requested that the judge make a claim construction which included that mr bradford and his predecessor argued against it saying it was premature and that it was a factual issue i raised it again in response to their motion for summary judgment and the judge just room at the time edgerrin steps at a time of the trial i will if you my familiar with this product and he was listening to that evidence along with the jury and everybody else he was uncomfortable with the idea that he was going to rule from the band that these two elements were functional instructions correct but if we conclude that even if it was their anticipation instruction standing alone were appropriate characterization of the law then then that's the end of ink right i think so the answer that reference the catalog reference doesn't give you the ability to actually look at the design to see that will you see it from a distance that i have to see how it's designed but we do get the sense that we're looking at a flexible strip with  mounted on those on the flyers and so at why the jury in the court turned to the actual john reference which shows you how it would be and if you look at what john tells us it is very different john reference recently moving them to the edge weakened the strip itself and changed the manufacturing process so that was the advancement over what had been offered in the past and that's exactly what mr kesse and