thank your honor may i please the court the commission erred when it found that a machine manufactured in italy by the time company with sold in this country by the fact there was no evidence of any activity related to that sale in the u s the question of what sale for the title transfer took place in italy but that the machine was being sold for use in the united states do you agree that under those circumstances the on sale bar would might be used in the united states certainly not equate with your not accepting my hypothetical my hypothetical is that while title transfer happened in italy the machine was sold to a us company for use in the united states is that covered by the anselmo or no i don't think so your honor and the reason for that is that i think that with just that information all we know about the activity relates to the sale is that there was a sale there was a more about any activity to telling companies typically directed to united states and so i think if we look at the parallels in the st in context where perhaps a company for foreign sale knows machine was imported and actually used the united states that would be a potential public use that could bar an ability if there was evidence of that in the united states before the before the critical date  company were and i think that it's important to know where the companies actually did their activity and so the issue i'm having with the hypothetical is that they're the italian ask you is this is it wrong or improper to infer from the facts that we have there was a sale in the united states let me back up and start to infer from the following hypothetical if that was a sale in the united states assuming we had a bill of sale that we had here and then we had say a month after that the paper appearing in the united states those facts that the commission relied on are just facts that indicate a us company with the ball so any time that you deal with a u s company they're going to have a draft any time most cases where you deal with these companies they're going to be english and there's probably going to be u s dollars used but that doesn't show where the activity took place the latest sale and again i turn back to texas advance auto electronics because both companies were u s companies would have that same sort of  place the united states were directed there because it's certainly possible that a sale between a u s company in time i mean like we have here took place entirely in italy and that there was no activity in the united states or even directly to the united states and just because  it doesn't constitute that crack a fact so what and then what about if the customer says i really like the tos when he's back in the united states and calls italian company and says i'd like to buy another tying activity to united states which we've seen some of the cases like enrica dany and hamilton beach products but you know there has to be some evidence actually showing where something took place in the united states there was activity in canada and i think your interior about all the time but i just want to try to ten point on what do you think the key dispositive fact there that turned that into a u s sale is it that the person making the offer for purchase is actually located in the united states being on that call with them where the i can think of the telephone signals are being sent the united states in that case and they're actually conducting business with someone located in there and directing activity there and that's how we how is that who's hypothetical you said that was a sale in the united states what's different from this case to the hypothetical in this case we don't know anything about parties interactions related we don't know what the business practices were we don't know who talked to when or where we don't know anything related to phil other than that there is an invoice with a us address that use english and that later we don't know when twenty years later is all we know the company was found in the united states and that's that's the issue is that there's just no evidence and i just clarify i just clarify one more time because i think i hear what you're saying but it's a difference that you're at least assuming my hypothetical assumes that it's simply buyer is u s and shipped to the u s that it's a sale back to him in the u s and what you don't have here is an invoice suggesting that the the machine should be shipped to the united states after determination of the commission relied on fave documents showing that too because the machine was sold to a customer located in the united states so the commission did not just rely on the citizenship of the buyer to me a little bit difficult i want to test the boundaries let's say you have a u s company and a parent company in the us company is is purchasing an item but it is always intended to be delivered outside the us so here they bought it and then they are purchasing it on behalf of somebody else and they deliver it immediately from italy to germany  and so it's not intended to be used in the united states the only connection is that an american company purchased it but it was never part and it was purchased from the already established a person goes to italy and buys issues there and brings them back is not on sale in the united states the hypothetical is that same person calls up the italian company buys a pair and says send them to my friend and one because hell like them to wonder whether it depends on whether the title and that hypothetical whether the title passes in the united states or abroad because we have this  case i'm mispronouncing it in the southern district of texas which involves the sale of a product for use in canada but the district court found that the sale itself took place in the united states and to what extent does it do the that the outcome of these cases the pinned us on where the title passes if title passes in the united states even though it's for use and were allowed under that states and so i would go back to the fact that there's that this is a question of substantial evidence at the end of the day and it's substantial evidence that is actually stronger than other instances in which this court has found that  mean it's pretty undisputed that there were machines sold to a customer they address listed with the us company the product was described in english in the payment was in us dollars and then a long time after the fact one time one of the machines with some in the united states i i have a hard time understanding how that substantial evidence efficient to meet the clear and convincing card here without showing that the sale was actually directed to the united states particularly when it was the liberty to someplace outside the united states i would answer that there was a similar facts president hamilton beach for example in hamilton beach there was a purchase order that listed a us address the purchase order for example had a number of units part numbers unit price all the same things that are found on the purchase order in this case and this court found that that was sufficient to trigger them on sale bar but true because i was an offer for sale similarly here we have evidence that you know we're talking about when you're talking about all these and they all have different back we just talked about the wall at the plight to the back of this case we're not talking about an offer for sale here we're talking about an actual sale are we yes we are and that should be stronger your honor than edges an offer for sale because here it's undisputed that there was both an offer and acceptance and the acceptance was by united states positive because that seems to be what she was saying i would say your honor that the court has addressed this so i agree that is quite strong evidence but the court has addressed this in cavaney in hampton beach and others in saying that and you can you address my hypothetical about the u s custom that it was directed sorry that was directed to united states meant for the united states or otherwise it was clearly directed at italy and and that is that the difference between this case there's no evidence for example of that that anything happened in i particularly when it was delivered abroad it's the same evidence that's found in hamilton beach that it is that listing of an address of the u s state of united states customer listing in english with dollars rather as the currency with a customs number those are all strong evidence that it is meant direct of the united states and caterpillar as the people of the actual seller that's the part of the party with the records in this case could have come forward with other because there there was evidence that the shoes were going to be transferred to somebody in england there's no another here that the this machine was going to be sentenced anywhere other than t have the same back that we have here and there's simply no indication of where when things were directly nine days when it came and denied state and certainly nothing about the teles act or the customers practices and where exactly happened twenty work again versus international trade commission mr john feehery please the court when congress amended section three hundred and thirty seven to allow complainants to meet the domestic industry requirement by proving that there was an industry in the process of being established it specifically had in mind the scenario where quote a new product is developed in the united states which is protected by us and election property rights and quote congress created that provision so that quote the owner of the intellectual property rights would not have to wait to bring an action under section three hundred and thirty seven until he can set aside a definition of an industry that is precisely the situation that caterpillar was in when it filed its complaint it had developed a prototype for the machine was preparing to sell that machine but had not done so yet therefore caterpillar did not yet have an existing industry in the machine it was only in the process of stablish in one but due to caterpillars failures during discovery it was barred from demonstrating that industry was in the process of being established whether it had to demonstrate an existing industry in that machine the commission erred in holding there was one because it why can't you have an existing established a now to be fair it could be those dollars could all count in the process of in the process of being established and congress and just wanted to make sure that that was possible and that's why it creates a statute the way it did it made that distinction the problem of course for caterpillar is it was barred from attempting to show that it was in the process of of us trying to establish an industry through its prototypes and it's and the dollars that it spent and so therefore based upon that that problem they are they simply cannot show a domestic industry in this case now the distinction that the commission wants to draw or claims that it's drawing actually just collapses that to the di between a industry in the process of being established versus being established they don't draw any distinction there's no analytical work being done by that distinction that must be done because the statute is written the way it is indeed when the commission goes about trying to determine whether or not a industry's in the process of being established it uses the same exact test as it does when it is trying to figure out whether or not the industry is established or research and development licensing and so it's not simply a high it's simple it's not simply a hypothetical collapse of these two prongs of the statute into one it is an actual one they they truly do not distinguish them in actual practice and that is a error because as the as the dictionary is as the clear import of the language shows there has to be a difference between an industry an anonymous tree another way of saying that is that if we went back to her graph a to congress could have said for example that there's a domestic and there's a message industry if there is some activity in the united states or that there is some some after actions by people in the united states it didn't use those words and then use activity or otherwise rather it used the word industry and therefore that term ought to be given an actual  expert evidence was ignored by the commission determining that the claim one team was not obvious it's important understand the inroad milling machines when you swing that back leg of the road milli machine you actually have to steer that back wheel you have to keep pointing it forward otherwise what happens when you swing the leg out is you'll drag it you'll drag the wheel if you don't point it and the prior art demonstrates exactly how that steering should be done the commission however said that and ignored the fact that there was a reason to use the booze lee patton by piece because it said that response experts are not explained why or how the blues lee embodiment would be an improvement relative actua and thirty six the question is why would you have used it or what why was a reasonable expectation of success he said there's a reason why expectation of success because of the similarities between the boozer lifting column and evolving machines with income namely the problem with all rich was that there were no lifting columns and so therefore you couldn't just simply use the actuators and and all rich to steer that back wheel so then the question is well how would one do that and i think your honor that the commission specifically said hat that there was no discussion eric's place of how appendix forty two so i think there actually is a dispute over that question but nd off as to the why that can be found  industry that exists and an industry that is in the process of being established a different test for an industry that is in the process of being established under that confinements need to show that they are likely to establish dead she is i don't have a question for you about this case but i just wanted to apologize for getting testy with you in the last case these telephone arguments are hard and particularly when time is really short it's very hard to get counsel to stop talking when the judges start it's why i wish we were doing the video instead of just telephone like much of the other circuits are doing but again i am sorry for the tough english i know you are just trying to do your how the reference actually functions and the way it operated it was the machine where the front legs were going and they were specifically designed they could hear together and because they're still together they had to maintain  work and so in that context where you have a machine that would be unfair to propose like the like working argued then that is the teaching way based on the case law and i don't disagree this is not one of the cases multiple portions of their expert testimony to say relying on the brief of the commission cited those in its own opinion they rely on their testimony of question answer to fifty three to thirty three and to thirty five of their expert witness that their test has a distinction between the process of being establish an existing state pointed to the fact that they say well there has to be a likelihood that the industry requirement will be satisfied the future but they also require that you must demonstrate that they are taking the necessary tangible steps to establish an industry in the united states whenever there is a test however and the commission actually applies that it looks to the same exact evidence for both existing and for in the process of being established so therefore the again there just collapsing the two and the statute language requires a distinction turning to the obviousness point your honor the commission and caterpillar both say that there was some sort of credibility determination of their expert caterpillars expert being credited more than firkins expert there is no such place in the actual commission of peanuts stating any of that and as to why there was a reason to commission's plain language in their opinion states that verb can did not state it either how or why as such that is both an a a factual error but is also a legal error because it ignores the evidence that was available it's it simply said there was no explanation of that when in fact there was there for that reason that determination needs to be ok thank you m