in industrial design over four decades of experience in the field although fill in just real design is a really really big feel the need to be designing inside of a power plant right that is possible right so that's a big far cry different from upon the other but they both are infected by the same problem and that is that the district court myopically focused on the title of the design pattern itself and then defined or constructed that applicant that you are required to identify in the claim the same day that you identify this the title if you're going to suggest then that if the title ins up in the plan at that that defines the client right then this is that swallow the rule it doesn't swallow the rule that says the title can't define scope of the claim and therefore simply by placing the word title in the claim that doesn't surgery and in that case particularly the issue claimed construction was a bar and the the lower court there had found each and every aspect of the subject client functional and therefore so it's so in your case to take for example the i guess the round things ago over the arms yes or their functional in a certain sense but they also can have design aspects in the way they're shaped you know their size their form and that and the like so we have to look at the design aspect even if there is a certain functional device aspect of it as well that's exactly what the at going into surgery  cases that's true and that is simply regurgitation of this court's precedent that we didn't do that like every bottle which is designed patented you would just exclude the whole bottle because it's functional in that it holds the fluid inside right that's that's correct so one of the teachings i guess of the apple versus samsung also there was there was a quest air to to make a global rule and the court rejected the concept of the global rule  but nonetheless said the import of construction is to identify the nonfunctional aspects of the design didn't say you have to identify the functional aspect by using the term except in her claim construction that's exactly what the district court did she didn't devore to identify the ornamental aspects of those things that she found had some function and said what she did was if it had something it was a lemon from the scope of the claimant could not be considered this is functionality is that a fact question that should be given deference it's a great question it depends upon what it is that is being considered information considered this competent evidence for the purpose the ultimate issue of claimed destruction of course is an issue that has no differences reviewed in nov and if there are legal errors that were committed during play in construction  don't think so your honor in fact i think that in subsequent cases like shire the court has been careful to identify that you don't need to focus on those those elements that  stated in the drawings personal flotation devices the title the title of the patent itself and personal flotation device certainly is not the use or purpose of the claimed article that used their purpose is to provide limitations on the other line article of manufacture and on the qualifications of any switch called suitable or viable alternative designs i think that the root cause of the district courts err was the determination that the function of the article was personal flotation of us walk personal flotation devices not a function it's of thing the article of manufacture itself an article spahn sion isn't determined by the title developing these kind of wearable flotation devices right he's an industrial design he does a lot of other kind of things it is only i guess relevant experience was he owns a boat or something this also designed scuba gear he's designed all kinds of point materials sure and so it probably wouldn't have been an abuse of discretion to let him but why is an abuse of discretion to exclude it when he specifically said i have never in my professional capacity wrecked rectangular segmented covering systems much more narrow so it was that the district court failed to follow the few chains of sundance that led to the air i was  for your time today i would like to respond to mr and mrs position with respect to the patent title that being injected into the claim construction this is an interesting point that because as judge still pointed out personal flotation device is a term that's used in the claim description as well and in fact mr and its claims that it should not have been injected in the claim construction but that is the proposed claim construction that was requested by coleman in fact that they requested i don't understand how this about hers because even if we conclude that we can talk about whether these are personal flotation devices and exclude any kind construction that were identified functional and nonfunctional features that is consistent with odds on your side are you saying that there is no design element at all picture i mean you could have any kind of number of designs for these are vans they don't have to be round selling doors they could be i've seen some where their lights were square put together you know they could be longer or they could be shorter they can do all kind of although that might be optional but those are ornamental aspects and you can't just exclude the entire structure because you conclude that it has some punctures and that's what you did isn't it your honor let me explain that those arguments were made you should just look at the picture and there's nothing in the picture that this is a completely functional what the judge did this in that the district court did was looked at the article meant factor in this case was a person flirtation device there's but they didn't just completely eliminate all the any particular functional elements of the rocket football and instead this court said you got to look at the overall design we don't just eliminate part following features are functional so the court looked at those features in combination of the overall design and that's what the the it did and ph d cased in odds then and that is a typical way that the courts in considering functionality look at how whether something is functional they look at the features and they look at it in combination of the overall impression of the design but even after they determine that something has functional aspects they don't just walk off that element saying this is functional i don't know of any cases that have done that other than what the district court did here actually there are some cases where functional aspects were not included at all so for instance in the odds on case if you look at the description of the claim construction it's very detailed and what the court was trying to do there with differentiate between a testing ball and a ball that tosses like a football but flies faster that was distinction the court made its claim construction is a very detail clean construction to ensure that the court captured the ornamental aspect of it and the functional aspect as it also said that it looked at the river all rocket like appearance of the might be other designs out there that could have been used but there was no such evidence before the court the only alternative designs why didn't her have the evidence i mean the evidence is they made a particular design choice in the picture they showed and unless it's purely functional and it has to be shaped that way and it only has a functional result and then the rest of it's a design that's absolutely correct your honor that was the only way that the only evidence before the court testimony of the inventor testimony of the only expert that testified as well as the utility patent application stated that the armband had to be shipped this way be round and tapered yes has to be from get the order to function yes my goodness i had my children in the pool with these little ones with wings on them they actually have wings my daughter loves them they're not grounded tapered yes i must be a terrible federal regulation why because it's a life saving device it's not a swim eight it's not a bathing eight which these are it is a life saving advice device when the rolling into the water an emergency situation it saves you and that's rebutted comment and not present any evidence that a personal flotation device need not meet u s coast guard standards and what the court determined were that the armbands and the tach ments tapering these were functional features and not one of them i don't recall but do you have certain cases that you rely on for the position that functionality we need to determine what the article of manufacture is and its intended use but surely that helps you to figure out whether something's functional or not sure so it's undisputed here that the article manufacture is they could appeal it's the court's decision on clean construction so we want to be heard on the infringement under this extreme claim construction i mean even if you go with their claim construction are you going to w i believe seven years is the best there is is a baby and it's so i mean so completely different the only thing that is relatively similar is the armbands actually which are functional  it and that was the court's decision your honor we believe that this case should not have been brought it off and we were hoping to get the courts final determination on an infringement and realty but common decided to appeal this decision we don't want to waste had indicated about what happened in the odds on case and and even though certain aspects were found to be functional were they nonetheless construed in the answers absolutely that is true that the fence themselves were described in detail by the court in its those produced by that expert to say an ordinary designer earth's class started designer of ordinary skill in the art of this particular patent would look to those items to cobble together and create the references couldn't you couldn't change the look or feel and for the device to continue to work as intended i think