if you are using one of the preferred embodiments for the insulating material yes there has to be a facer because otherwise it sprays and foams and it gets out of control but that they serve is a byproduct of the manufacturing process today as the faces and then another layer of us be followed by the blocks in the top layer of us so it's our contention that when properly construed the court found of the insulation material it's kind of i was trying to find a good analogy and i don't know if i've done it but it's kind of looking at a cake with icing i'm not going to look at that and say if i put my hand on top of it and i can say well your cake analogy for just a minute where were you going nah the icing is part of the cake just like the face surface part of the insulation board that is part of the  actually a separate layer at even cornell throughout through their their prior papper cation they tried to patent the bt to an earlier version it had strips instead of blocks but otherwise it was the same and sticky in some i seems you're quite hard crust are you drawing a distinction between this sticky i scenes in the crusty ice i've never seen a crusty icing but i'll take your word for that i the product it provides different characteristics in advantages to the end product that the face or doesn't the face or does nothing it's just part of the manufacturing process for the phone but i thought you agreed that the ply served as a face in the prior art where i do know that i agree that they sprayed it against it i still say and think that the it's a different component when you put your in i could your distinguishing between face or you end up with just a board of insulation that if you look at the polystyrene examples there is no face or in the feet t two x or the b t one x because it's unnecessary it's only there to make the phone but the other layer of o s b is there to make this product the end product a maximum strength product for every roofing slate tiles cetera or purpose there is a prior art because it the same time serves another purpose i know i am saying i don't think it prior art there's no dispute about that that should not have been part of the anticipation in iraq and so that's your point yeah the claim language says the blocks are in d or joined to the insulation material argument is the insulation material including the fiberglass or filthy if if if there if the court or the district court wants to say that the two are the same then i think it's a maybe that's an infringement issue but i don't think it's an inability to shoot you're still attaching the bt to attaches the blocks to o s b insulation below if if the child judge had been invited to or had actually conducted a full scale obviousness analysis how do you think the case  come out in terms of the validity of your patent well it's our position that there were secondary considerations of obviousness that would have carried the day for us obviously not denying that but i think and those issues are before the court right i mean the evidence isn't here but there were there we did present secondary considerations of on obviousness to the district court and the district court then went on and found anticipation and then further said because it's anticipated it's obvious you sleep that's an issue but i mean i don't know if you want to get into the secondary how the channels can be cut in either direction well either direction doesn't say both doesn't teach or show the block so i would agree our position is this is all about preparation so they've got a witness who's testif d one witness who testified about the cross channels of that product i think the testimony is pretty slim i don't think it is if it is clear and convincing evidence even the witness that is clear and convincing evidence that that was done prior to the critical days and on top of that the only corroboration that cornell records pointed to is the air flow brochure i thought your honour's we think the district court judge got it right here and the patent institute was not a complicated patent in the prior art is not complicated prior art on the district were kind of right because it looked at t two and looked at the bt one and it determined that there is no appreciable difference between these two products at least in respect to the nine five zero patent when you look at the  felt face are now in the early ninety's cornell simply removed the way for board and inserted a they felt facer as the top layer and that became the p t one the product that is accused here night i heard a question about whether it was appropriate for the district court to look at the v t one this this product that uses to fill face or so as opposed to a felt face or on the bottom in a way for port on top i think it was appropriate because in any litigation you have admissions being made by partners you have tough positions being taken by parties and arguments being made there's no reason that the court needs to be blind construction that they advocated for when they advocated we were talking about claims construction in this case the integral as part of claim one was integral there with was construed by the court and the court court decided that the term integral was going to mean formed with or joined to know if if the court had decided that it just meant formed with then us tentatively the space blocks and the insulating material would have to be integral and thereby included not only the accused product but also the prior art and i think it's important to recognize that there are many disagreements about what the v t too is or whether it's  prior art the only disagreement is how as a matter of law that claim one is applied to the undisputed facts understood it to be t two has i have been away for board layer between the space blocks and the insulating material but as the court probably found at the district level that all became one bore these are these are boards that are manufactured this way and as early down got it exactly right you made the right decision by finding that you look at the v t two that is that's the patent and it's anticipated and therefore invalid i'd like to invalidity of four and five the district court gave you more the yaps for on summary judgment how do you get around i'm not going to i'm not going to advocate strenuously on that point because i don't think it's a concern for us because our product doesn't have either one of those those features and i think it's pretty clear that prior to that was being done to look at the cornell the v t to look back at the specifications they had square blocks but according to cornell according to the testimony in this case it's it's better to have more air space so rather than having an equal distance between block channel block channel kornel spread the blocks out so that there was more air flow underneath the surface which is actually a better product with regard to the branch for air flow i think the important point is that with regard to this piece of prior or w s expert acknowledge that did then obviously is we went to the brochure examined the brochure we consulted with our expert and then to resolve any dispute as to what the brochure actually said in providing channels in either direction we went directly to a branch river in rhode island we deposed one of their employees not the owner of the company just a guy who worked on the line and he testified that he started there in july of ninet six and his deposition testimony is this clear and convincing evidence that branch river did this it wasn't their their their bread and butter product but they did it and they sold it well in advance testimony from mr du phineas who is this branch or employee he talks about i ask questions you know when's the last time you did this or when did you do this well the last time was about eight nine ten years ago the rhode island college project what can you tell us sir when exactly you did it i don't know i don't know what way when we get but when he was told he doesn't need to give a specific date you don't need to tell us the precise day of the week the exact date side so his short lee after he started in one thousand nine hundred six turned into at least within the first two years after a start that was a critical date in his life he has no interest in this case here he thompson those cases are heard i think difficult cases for me and i look at those cases and i think we can get up around dealing with those cases because what we have is a brochure that was sent to our client in  pressure the question about the brochure becomes does the bird sure disclose a candle that when placed on a roof you have channels up up the roof but also the possibility of cutting between a prior art brochure a reference in new york and we have testimony from somebody who actually did this who is who was working on the manufacturing floor and was supervising some guys that that was a simple process distribution is said it's a simple process and the point of the branch of airflow panel as described in the brochure was that it's flexible it can be modified for your project now it's generally says well we have to limit the device to a certain size which is exactly what this what this does it's a square block it's it's got to be equal distance apart these are minor limitations that somebody in ordinary skill  and do more work where this is this is an anticipation case but as the court recognized i believe earlier that this case it's clearly an obvious this case as well so it could have been decided on either grounds it decided on the on the anticipation side but the obviousness side is there it's completely there as well to include your honors i guess we don't use common sense in doing  i'm not arguing no i'm just simply arguing i'm not agreeing that there are obvious but i'm just arguing that there was no subject matter jurors took over those we actually listed the specific claims in or playing and i don't recall whether their counter claim was brought to that but certainly they didn't move for summary judgment on those they weren't in dispute i don't think they were issued a case but the but again because we were asserting them it's kind of a minor issue as well  turning to the branch river briefly you know i don't know i've or w has argued that you know the document didn't go on hundred percent it's in discussion just now on whether corroboration has to be one hundred percent and i honestly don't know the exact answer to that but i know we have one document with one minor statement that one employs testimony from twenty something years ago that this is fake and he even said i can't be sure and i don't think that just that is clear and convincing evidence that could be relied on to anticipate the claim i mean in this day and age there should be all kinds of records mold all kinds of things to corroborate this but we got one piece of paper one guy who testimony is fake i just don't think that is clear convincing evidence indirect it's joint to the insulation and you know again i think it is a question of fact whether or not the insulation  face or you know it is is simply the insulation or it's more even cornell's on m s t a sheets when they talk about the makeup of the product they say well it's made up of o s b it's made