ninety nine clear vers battle of the experts and the evidence of the court cited was all of a page and a half was evidence that the event that the apple e chrysler relied on that was taken out of context and ignored your starting this case an posture i thought most of your arguments were directed to the claim construction and understood very little of your case to be directed to didn't under the existing traction am i wrong or you adopting the not obvious claim construction no your honor we are there's actually two distinct issues in this case one is that the clean construction was improper but even if it wasn't working to the court accepts it we believe there is sufficient evidence in the record dr a can testify that went to painstaking detail in dozens and dozens of pages or multiple reports to explain how using the district courts clean construction in his opinion ram search box is apparent to a casual observer yes no he says he says at certain angles in certain instances and york asked him what he thought and he said yes it is apparent the hinge panels are apparent to me i've climbed all substantially the external appearance of a pickup without the storage facility storage system built in storage and you have your alternative clean construct a pickup with the storage built in storage looks like a pick up without the built in story that's what claire said in the file history that's how to overcome rejections he said he cited webster's dictionary and he said external appearance is not magic i don't think he was his own le i think he's applied the plain ordinary meaning that external appearance or substantially the external appearance looks like something without it and in the file history it's very interesting your honour's is that the original there step forth in the claim language in the examiner green we pointed that out during the marking process and the district court said no that's improper you don't need a point of reference and what the district court said is we're going to look at whether the storage box is not obvious and took the point of reference away from a pickup truck without the storage box with a built in storage and compare the two and we take issue with that so she would with th acquitted is change the focus and it was improper plus we also took issue with injecting the word obvious into a claim construction in a patent case where a jury has to hear about obvious on the theory convincing for yes i do your honor well aware that so we think we we believe that the be honest i don't think the clinton structure was just flat out wrong i just think it could be better than clear and it created confusion lab chrysler too and jacked these semantics to argue and allow the district court to weigh the evidence and say oh that's obvious which is what they did without the record and that was improperly don't see and you x you don't want me to decide this is a question of fact on appeal however there are some questions of fact and upon which no reasonable juror could conclude otherwise abs why isn't this one of them i mean look giant push button this is what opens in case you all want to know this is a pickup truck which has a hidden compartment to put your golf clubs in fact that's what the inventor came up with a hidden compartment to put your golf clubs in as he was a golfer he wanted to hide them somewhere instead of putting him on the flatbed of the truck where they could be seen and stolen also useful by the way for tools putting your tools of your construction person into this hidden in his patent there is no push button and he goes to great extent to explain in his pat well you also we do you also have raised letters that are quite obvious in the four grams box on the top and you want to match your honor judge moore you are entirely correct to argue that to a jury but if you look at page four of our brief and you look at the pickup truck without the remarks in the pickup truck with the rampart if you didn't know what you were looking for our expert says to a casual observer you wouldn't know it's there and chrysler went to great things here your picture is at least in briefs so black and white that i can't even see at all where the front door and the back door are on this picture when that picture instead is in color and it doesn't matter whether it's blue or white look at how pronounced it are you got a blurry photo copy that doesn't even allow me to delineate the front door from the back door in or you're out of the picture you are pointing to of the lock from that vantage point is obvious and from the vantage point of looking on the raise lettering it's obvious if you're standing on top and looking down but from the standing in the bed i'm looking down judge waller if you're y'all and i'm like me and you're looking over the side to be clear this is one two three four five different pictures this one is coming from the back and all this is coming from the front looking back this is coming from the top pushing down i mean the only place i could see this thing it was underneath the darn truck your honor according to our expert and he is excused in this field to a casual observer claims speak to looking at the pickup truck it doesn't say look at the side panels here experts according to his expert why do you need an expert for this the whole question is is this hidden compartment hidden or not any casual observer and you are saying to me your expert tells me what a casual observer would observe do i need an expert i mean am i recently i'm not an expert in most things but are i at least a casual observer yes absolutely absolutely but you're not on  injured the judge of the it's the evidence in the record is from an expert who gave a report that explained everything but so i'm relying on evidence in the record on the rule fifty six a creates an issue of fact but the claim the question substantially similar to a pickup without the storage so you have to look at the entire pickup and he says yes it is and you look at the the efforts that chrysler went through to match the color of the contour make sure it does not look like utility trucks match the lines perfectly so the cut one goes along through it they try to make it look so it has substantially the external appearance without it they look exactly alike if you didn't know what you were looking for and is free to argue to the jury and that's what the claim says and or issue with the clinton structure is that the district court lumped certain claims of the four of the seven nine five patent words as his panel and doesn't have the word substantially in use of storage box with claims of the other patent which says the bet is constructed built in storage substantially the external appearance and said we're going to call them all external appearance clinics so this is a good point so let me ask you did you separately argue these claims and the differing languages kind absolutely and so would you agree that your case is better with regard to the five hundred three where it says bad which is a larger portion of the track and substantially which means not necessarily all that your case is better there than it is for the seven nine five which only says the hinged portion which is just this portion along the top and doesn't have to worry actually there are clearly differences in sense for purposes of purely and if we can from there are differences i said is your yes hinged panel didn't have to be construed even though chrysler argued for a definition and a special master the district court said no there's nothing special about those words we think the same rationale applies external appearance substantially or not whether they're limited from the patent claims themselves or from the specifications disclosure to what the district court called not obvious storage or hidden storage but the patent claim says the bed being constructed such that the pickup has substantially the appearance of a test without the built in storage so given the rest of that claim you're fucking on the whole bed just where the unit is the whole bed that's every doors back right this truck as compared to one without this hidden box is the push button there and this cutter and that's it right yes sure so the whole rest of the bed the interior of the bed the back side the bit the other side of the bit all is identical the shape of the bed right the contour of this part of the truck the entire bed the contour of the bed contact was anything else is identical for the still the wall actually moves in a bit then you have a cut line with the harz on all seam that's about midway up the bed and the lock in the ram box those are the differences the contour is the same if you take a look at the cl contour matching the front of the bed is already acclaimed element and special master thomas in this claim in this case actually pointed out that this must this claim must be something more than simply matching contours to the five a three claim line which already requires  the least and the cutlass but keep in mind the patten expression had its own cut lines they were vertical not horizontal but they had vertical cutlass yet they were in conspicuous and minimized so that you couldn't tell there was a witnesses admitted it and their expert invented it so the features put together sort of tell you that there are storage there so the bed is substantially different if you look at the spec the issue of substantially different comes down to whether you can tell other stores there or not there but i do want to step back one second the issue about whether the claims were argued different below with back to the five a three with respect to the seven and five was soley the word substantially hinged portion are the panel being in the clinton struction that was not taken up as an objection to the special master nor presented to this court so the claim construction that focuses on for both the five e three and the seven hundred five focuses on the hinge panel that hasn't been a the one difference between the two sets of claims that has been appealed is whether substantially makes a difference between the two claims that as the court knows the claim construction she was murdered for reporting recommendation the special master thomas he address mean so stepping back to claim construction in the differences between the seven and five this is sort of a roundabout way to get there the the answer is you can have them exposed they're exposed in the  figures in the pattern but they are still concealed behind the tailgate you can see them are not in the cab they there's nothing in the pattern spec that says the locker last can be visible and in fact the pattern says just the opposite so we know you convert from a conventional bed to mr player's hidden bed says thus one would not readily recognize the modification to the bed and therefore those with the intent to steal tools would not recognize the hidden storage arrangement if this  modified bed are the two vertical cuts and if you take a look at figure five you'll see that they are placed at places where people might think that they are seams for the sheet metal you can't tell there's a hinge panel there but what it means like i said in a five eight three hinges that are viewed under the doctrine of claim differentiation yes that would be the normal construction but expose doesn't mean not expose doesn't necessarily mean that they have to be conspicuous or a modification storage box in a truck but the extra zero appearance the bed is constructed such that the pickup has the external appearance of a pickup without the without storage that plain meaning suggest that the truck has stored but looks like it doesn't have storage sell the district court or put it that means it's hidden the plaintiffs in this case said no no no it means and the court is asked them about their alternative language option we haven't really seen one at least in their opening brief what they are really looking for other than just use the plain language but there is an issue of scope here and the question that they raised is no no no that language under its plain meaning just means matching the contours pane texture as i said for the five a three contour matching is already required by different elements so it can't mean that special master also agree with that but more importantly you then resolve that issue by resort to the spec and the passage i read on column four where one would not readily recognize modifications to the bed tells you which of those plain meanings to the extent there is any ambiguity in the plain meaning we don't think there's any tells you which ones correct it has to be the one that makes the modifications not recognizable in other words not obvious it can't be the one that allows for a plainly visible storage box like the ram box that has the same paint color in the same dimensions to fall within the coin scope because those modifications are recognizable that's one way we get to the correct claim construction plain language of the claim in the context of the spec to tell you which of the two proposals are consistent or inconsistent with that second this patent operates this patent spec operates as a disavow to the extent that a court believes that the plain meaning of this claim phrase is broader than hidden storage there is a disavow under the g n store in a lot of case and i can show you what i mean if the court would turn in the read read brief page five like most patents this one starts with an explanation of the problem and solution this patent specifically identifies the two pieces of prior art that it thinks are exemplary those are pictured on the top of page five if you take a look at the one on the right the lawrence patton concealed behind a patio and you can see what's in it well this shows that that's not correct this one has a space behind the panel that you can't see but despite that it says in describing these these are satisfactory for their intended purpose but the s still attractive for attraction for theft so what is i mean these modifications despite having the same contour in it's a pattern drawing but presumably the same color is an attraction for stuff because you can see the cut lines and the  visible as the ones in the picture you hold up judge more and doesn't have the big shiny push button lock to tell you that they're stored the patent specifications goes on to say at the end of that column and this discussion is in column one lines forty eight to fifty two it says thus the pick up after just discussing what the invention is going to be how you convert it into hidden storage has thus picked up can be used for pleasure or work without the appearance of it's stored utility capability its capability it has storage but its capability is not noticeable because that panel is not obvious or is hidden in to them that distinguishing of the prior art works as a disavow when you look at it in combination with the various uses of the present vention or the invention that we set forth on page six and seven of our brief of the red briefs those are just some examples it's a short patent reading through it you can't come away with anything other than this is the type of pattern that the president vention law was designed for they use those words to say this was our invention we didn't want to be like the lawrence patton where you could see the panel opening we wanted our mr souter if i could turn from claim construction mr shooter said that his expert has given testimony that the ram box infringed as the court noticed he does have from a fifty two zero zero to a fifty two zero eight everything about the differentiate from this pattern when i asked him at his deposition ok so if you think this isn't obvious what would it i couldn't understand once we won claim construction why they didn't stipulate to not infringement his  his answers pretty telling and they quote this paragraph in their briefs and say this is their key evidence from their expert it's that a fifty to a one were not obvious that's what they say they're evidences that's just a very conclusion the case law says that's not enough to reject summary judgment if this is not a classic battle of the experts you have to support my next question how would you construct the hinge panel so the storage box construction is you have to see inside the box for the box to be obvious if you're have a opaque hinge panel and you close it you are not obvious because you can't see and and the passage continues down to line twenty page one twenty two by saying is there any other way besides making it with glass and as an expert to prepare important say this he said no none that come to mind i'd like to turn back just more your question about substantially that issue designed it in a way that was obvious and he could speak to that he was on robotic doctor he was a mechanical engineer wanted to pose them i actually asked if he had any expertise in determining whether something was obvious or not and he said no he didn't but he did as a ordinary person see all  distinctions and conclude that it was obvious and evident that you could see the hinge panel and push button we also asked there are two party witnesses mr clare mr long their parties here their statements are binding emissions they also found it obvious in you just bear with me for one second yes and then later but that kind of can't be right can it because we already know the pattern allowed for vertical cut lines i can see those so that actually be the right answer it's a great point the district court there was also written description issue on claims that did not have this term that we're very good or are not going to give you more time to cover that so if i can see it she was the patent the only embodiment the patent i can see those vertical cut mines that can't be the standard for whether it's obvious or you can see the cut but you can't tell it storage that's the difference the modifications cannot add up to equaling storage and here with two vertical cuts that are not in places that are a conspicuous and a hard on a want to get in a place the structure never have any pushbutton those distinctions wire you don't know what's there just by seeing cut lines and a button that said into the record that had you know that the storage box itself that you cannot see is obvious that's where the problems with the clean construction was happening you description of the figure says in these environments account three of their it says that the described method may be carried up on making a pair of vertical currents that may be hinged may include providing a latch and  outwardly may indicate some things there but you still need the ominous clue given your argument the distinction the pattern with our rectangular utility trucks and the photograph of a six six t nine are you what you're saying is that are not obvious be even though they're distinguishing from it because there could be an electrical utility box inside but to the casual observer you see the utility box going down the street you know there's something in there that's useful his purpose and i and i loath to argue the purpose because one of the each pass cases progeny a purpose is irrelevant for the clean language you cannot import a limitation that that storage was the purpose the it's in the claims but he was distinguishing from utility boxes all the prior art that was discussed was those boxy eighteen t trucks that come up to your house or whatever those are you till the trucks or those boxes at the silver corrugated metal boxes where you know something's there he called this a trunk in a truck it's no different than when i took my kids to soccer when they were little and i said put your backpack in the trunk i don't want to see it in open view in the back seat that deters theft and then other limon a theft if someone wants to rob my trunks they can but they don't know what's there and that's what he was trying to capture in his invention is you don't see it in the back seat whether it's your purse whether it's your golf clubs whether to kids book that coming home from school when taken for a snack you don't know and as long as substantially the external appearance of a pickup truck without that storage in there that's the event that's the invention and utility trucks doesn't have the external appearance of a pickup truck so there was no disavowal in judge moore i'd invite you to look at the record we provided the color photos from dr aiken's report that show as you put them side by side i apologize for the grainy photo copy in our brief but we did point to where in the appendix there are actual color photos because it shows that them from different  elephant in the room once you know there's no it in the room you cannot not know it's there but just someone that says it has to contour the shape it doesn't look like utility truck doesn't have a cross box it's for the jury to decide in our issue there thought i'm sorry i thought oh yes final thought this is summary judgment there's evidence in the record all inferences are in our favor all your comments are good