specifically as to the five seven seven patent and whether or not the district court abuses the discretion in admitting the expert testimony of mr jonathan richards and lastly as the court just directed us to address whether the court erred on the permanent injunction first with regard to their own reference there are certainly lots of points of departure between mighty and harris with regard to that the roman reference but really what the certainly agree with that and i should mention that at the time of the motion for summary judgment that was the construction that was given by the court at trial there was a later construction modifying the terms of modifying one of the that was not picked and that was not the construction at summary judgment it was a different construction the tubes what the court specifically said is that she's not allowing any further limitation in terms of whether there's any doubt that's required  specific in that regard believe the trial court did in terms of viewing the specification and the rowing patent was to really view it far too narrowly one thing but it seemed like the court did not take into account is that when you look at rowan and when you look at the devices that issue we're not only talking about the same field of invention we're really talking about the same field of invention to attack exactly the same problem ron was designed in it's very clear in the specification to allow extra fluid through the device through the use of aperture is to allow more airflow that is part and parcel exactly the same as the purpose the devices that issue i allow more airflow on one hand of course there are other than a taishan but really when we're talking about the aperture the aperture is a really intended to affect the same result and since we're talking about the same field of invention and we're talking about an identical purpose the court seemed to give no weight to that at all and really the court should be looking at especially a device that has the same fluid and air and then there was a description in the specification that removes the i believe it was the appendix twelve ninety eight page four of the rhone patent starting at lying twenty eight the air passing through the apertures twelve provides for positive been a relation as indicated by the arrows which act to transport away the carpet damp and dirt particles fourteen and the like and i think what confused the trial court is this idea of positive in the lation but when we're talking about positive i just when ron is talking about positive ventilation the positive been ration occurs at the edges of this device and the edges as laid out in the specification are the portions that come in contact with the surface of the carpet so whenever ron is referring to edge it is referring to the bottom of the portion of the  device the part of device that is contact from the carpet and when that round refers to positive inhalation occurring at the edges it's referring to the apertures that are there which necessarily have to not well i guess first i should clarify that this argument is certainly structured toward anticipation relieved that it really anticipates i do believe that the court is correct that well assuming the court's statements there if it only takes in fluid but i think it would be obvious especially combined with the multiple prior that's out there certainly speaking about obviousness i'd like to point out that harris argues that might he has waived its right to appeal with regard to obviousness but it's not exactly clear where that derives because when you look at the summary judgment motion that was filed maybe specifically well first the issue that we raised with the trial court was that there was no expert testimony that was needed for either obviousness or in suspicion because the patents here are so simple that expert testimony is not needed and what might be presented at emory judgment was the patents themselves which are evidence and we presented argument specifically in the record of the appendix at seven seventeen we argued that and this is required to the five seven seven patent that they were the claims are obvious in view of rowing in combination with the other  and then even in our own motion for summary judgment respect obviousness we argued at index seven hundred eighty eight that we were incorporating the evidence in the argument regarding obvious from they were actually pointed out to the district court that there is no evidence present isn't about the other side that's not the case here because we actually presented the patents that we referred to and we also presented argument so it's not quite like the  and then must have some time i'd like to move on to mr richards qualification which i think is really a very crucial issue here and first i start with this court's ruling on s c b and i see the it's very easy to see why that expert would have qualified because you were talking about a person with a degree in chemistry he had been with the patent office for thirty one years he worked as a supervisor in a chemistry division and what he was asked to upon on at trial was issues that were very close to his field working with polymers there were some claim construction that discussed thermal bridges these were all things within his field of expertise contrast to what we have here with mr richards mr richards was given three opportunities to state what his qualifications were to testify in this trial he was given an opportunity when he was designated as an expert and produced the report he was given an opportunity in my days motion for motion in limine to exclude his testimony and he was also given an opportunity at trial i certainly respect his candor because he didn't try to stretch his qualifications much more than what he had any person who is qualified to take the patent bar has to have some degree or some knowledge of philip physics and so we're certainly not prepared to say that anybody who is available to take the patent bar would be qualified as an expert in this case but in direct answer to your question i believe that mr secretary is certainly closer to mr richards is because of the fact that this is a mechanical device versus an electrical device definition and i really don't think so your honor and it's not an inconsistent argument at all because our argument is that the technology here is so simple like the cases th don't need to go through them that we've cited in a breeze it's so simple that you don't need an expert but if you did need an expert mr richard would not be the one you would call  this court said in a sunday adds that allowing an attorney as an expert in front of a jury is perceval prejudicial because the attorney who sits there in front of the jury has this pertain of authority that the jury listens to and if you look at the testimony of mr richard at trial he literally went through claim charts element by element with regard to i can say to the person that i believe that  relief at all and i think that this court has said and  is this course that an accurate that is a factor that can be considered another thing that i believe the court did that was incorrect was to exclude it mighty from introducing relevant testimony from  harris's own expert regarding antitrust their own expert said that they're not competitors in this industry and know what harris is going argue certainly they're arguing that in our complaint we allege that we're competitors the district court specifically said in her ruling that and if it's true that we dismissed the antitrust portion of our complaint so that allegation the guardian being competitors is really attached to the allegation of getting antitrust behavior but what  court never gave any justification for excluding the evidence of their expert for the purpose of the permanent injunction mr killick just would not consider it would also not give any weight at all and i believe this court said you have to give that's exactly what she said i believe this court has said in acting that you can present evidence regarding equitable issues that weren't presented at trial i don't believe it would have been appropriate to bring that testimony in front of the jury because it was not an issue that the jury would consider juergen not consider equitable issues good morning these appeals address harris research patents which protect carpet cleaning technology that's used globally by camp right franchisees and they follow a jury verdict for harris research up holding the validity of the patents and finding that my infringes and the pills fail because they ask this court to address obviousness issue obviousness issues that were not preserved for appeal they ask the court to look to take an independent look at the facts and to reweigh the evidence in this case and ask this court to ignore the boundaries of the trial court's discretion with respect to expert testimony and permanent injunction and allow obviousness to go to the jury my understanding is that the court granted summary judgment for harris research on the obviousness issues so in fact did not go to the jury so if i understand your honour's asking if the court granted summary judgment on anticipation and allow the obviousness issues to go to the jury would it make any difference as to mighty attributes the function of thrones overall system of apertures and the different functionality of all of those apertures to a particular set of aperture is that it identifies as the invalidat the district were other issues there maybe i mean this certainly yes yes yes and the reason i think your honor that helps that may help understand this to hit all of those different assert claims and their limitations and so that's why they're stuck with looking at these particular apertures and not the other apertures of the patent and that's where we're at on a review and the bottom line is construction in any manner on this issue so the district court simply did not air in granting summary judgment for harris research on you could follow my steps your honor i would appreciate it might it were a burden of demonstrating invalidity on clear and convincing evidence and in response to this heavy burden what they produced they never argued the claims five or ten of the five seven seven that were obvious it limited any argument with regard to obviousness on the eight ninety two patent headings in the summary judgment briefs that gave no one else's whatsoever the eight ninety two pat set forth any analysis under the ground factors and it referenced those patents in its claim chert but it didn't give any analysis it didn't give any citations with respect to some of the particular prior art that was at issue and the district court said that this was insufficient correctly to show by clear and convincing evidence that that those patents were invalid or that they could be held invalid but it was honor i would i would have to look at the district courts analysis to see how they handled the anticipation as to anticipation issue and how that compared to how i handled the obviousness obviousness issue  simply have to look in order to answer that question correctly at how the district court did that i have not compared the analysis of anticipation with the court's view of the record with respect to obvious certainly so so the threshold that sundance and s t v said was inadequate relationship between experience between the experts experience and the claimed invention and here we have this adequate relationship the court ask counsel for my you with regard to respect to education we're talking about experience here an expert isn't solely his is he isn't so we qualified based on his education it's also his experience and mr richards established  the bases for an education that had courses in airflow and fluid dynamics principles that underlie the technology of patents he talked about his coursework in training in mechanical devices and princip including how mechanical structures affect airflow characteristics but he also talked about significantly his direct experience in patent matters with devices of a mechanical and electromechanical nature and he specifically testified at trial with regard to his experience of the basic components of the technology he talked about the barriers and apertures that really from the mechanical aspects of the devices at issue in this case i would argue your honor that the patents issue have fluid dynamics components and they also have a significant portion of mechanical components and that's what was lacking in sundance here we have an expert that is testifying with regard to arguably a field of mechanics the court specifically highlighted that expert didn't even say that he had an expertise there was no suggestion of expertise in mechanics and this case presents many more facts on this issue showing an adequate relationship and does sundance and it reversing the district court here would expand the holding of sundance because of those additional facts that we have regarding  his experience with mechanical devices that would take a bigger chunk of the discretion away from the trial courts and and your honor it would depart from the traditional notions of rules to that allow testimony even when that expert isn't narrowly qualified to match the specific point at issue in the case well and that's where we agree with mighty in the sense that this is a case by case analysis and that's why the district courts have discretion one judge might view it somewhat differently than another but i think it is case by case and i think it's within the truck works discretion and i might also add with respect to this simple technology issue might be in its summary judgment briefings actually argued that expert testimony may be useful in the record on page one seven six six in its motion for summary judgment opposition might the state's expert testimony may be useful for so that's a stance that it took in direct opposition to to where we are today and certainly and what i'm saying is with regard to the argument that the technology is so simple it's so simple in hindsight certainly after things have been exhausted if we addressed through trial some things might appear simple but on first blush a district court or the parties might consider an expert testimony necessary to try to digest some of these issues so very quickly on the permanent injunction that we have cited to case law stating that the court doesn't have to consider every factor as as part of exercising its discretion here there's an admission that the parties are competitors and might is infringement with law would result in a wast of the right to exclude a competitor loss of reputation for innovation and in  i because terrorist research is technologies incorporated into the primary tool that it's franchisees are using across the world and it would ultimately result in loss of goodwill between her it's research and it's franchisees because that franchise the worst protection that technology that's in such pervasive use is an important part of the battle going between a franchise or in a franchisee so you're honest we would ask that this court from the district first with regard to the issue of mr richards money made it clear in its motion in limine in its papers and in its argument before the district court that we believe that no experts should have been required that included mr richardson including mr segregates because the it's exactly because of the reason that the technology is so simple and then with regard to mr rich it's no your honor i believe that the and this is what the court stated in sundance that unless a patent lawyer is qualified technical expert his testimony in these kinds of technical issues is improper in the us and admissible and i think that what the patina of the expert provides to the jury is that there's some extra thirty extra weight that has to be assigned to listening to the experts and evaluating whether these experts you know whether one is more credible than the yes i don't believe so you know and i believe that it looked overall to the to the quality in the force of the testimony of the expert and to what extent the testimony played an issue at trial and i think that's what we have here  i think necessarily but i don't think there's harmless error here by a long stretch and with regard to mr richards expertise the classes that he took that covered any sort of fluid dynamics or issues of mechanics or twenty six years ago when he was in college and he certainly had an opportunity at trial and an affidavit that he submitted on a response or motion in limi to expound upon his experience he could have stated in his affidavit or at trial yes i've had comparable experience in this field it happens and it translates over to these make these vacuum devices you know for the following reasons he never did that at least in sundance the expert there actually testified that he had some experience in the auto industry and that case of course involved a truck bed covers so there at least there was no i would argue that the expert in sundance had more experience than mr richards did here comparatively and then lastly with regard to the injunction there was no evidence presented at trial regarding a loss of goodwill a loss of or tarnish meant of reputation harris as a result of mighty selling these devices there was not a single letter not not a  single witness or one other franchisees stating that allowing some other person to sell these devices is harming us there's just no evidence really at all of what the actual harm was and i think what the district court did and it's it's actually explicit in her her ruling she made certain assumptions of things that were presented at trial while at the same time preventing mighty from introducing evidence or considering evidence and facts that