but as you can see in the images in our brief that reference is not basically the same i'll go through this in a little bit more detail but it has at least ten keep differences there were just two differences the camel suit case for this court said that a primary reference was in a proper primary  sides it's just not visually the same that's the that's the problem and so as this court knows in the design pattern obviousness test if there's not an appropriate primary reference that's where the analysis ins for the combination so switching back to the secondary reference all to prove identify the twenty nine patent is an appropriate secondary reference to and i'm happy it's that shown on hypothetical design that's that alter got to here if you go to page fifty three of our blue brief you see the height of that was on that they came up with and there's actually a legal error here the way that you're supposed to do design pattern obviousness is to find something in existence in a prior art that's basically the same as a pattern and then you're supposed to look for a secondary reference that has certain ordinal features that in cell suggest modifying the primary reference well that's not change so what they've done here is they've done exactly what you're not allowed to do under word and they went to the prior art and they said look we can just pick and choose different features that exist in the prior art and combine together to create this i thought it was like that's error that is not the so there's at least a material issue of fact right there even if the hypothetical design is correct which we don't think that it is so the court erred by taking that away the jury and even if you got to the give you have  isn't cut out but that's just a general description of a smart little shit well it should have looked at the actual design elements of the speech in design and so if you if you if you look at speakers on patents which are there they're shown in a sort of profile view thirty six dollars to thirty seven dollars of our blue briefs they have a tough and your appearance but they're still relatively streamlined so they're not involved up like the two hundred and eighteen so they don't look like for example your honor might know the author box case they don't look like a partially in the way around so there's a little bit of the frame sticking out on the side and out and out at the front there's also a hole cut in the outer shell and the frame on the back there are parting lines because of the outer shell on the back to give a distinctive at the design patterns and that level of detail i think the court would probably have been appreciated what the differences are with the two thousand eight hundred patent it's a lot more evident and it's much easier see the difference is once you understand the correct visual impression which is as your own points out that's the  basically the same so that's what women expert bring to this issue of the appearance of a cellphone case that one can look at very easily well respectfully your honor there is a huge industry something that you can't reach through suggestion in these drawings so that's that's the problem here and i do think that experts can contribute to this because having sat with an expert and started to talk to them about these design elements our expert tells us of the twenty nine is is just not similar it's it's very thin it doesn't have those angular corners ok so it doesn't have that level doesn't even have that feature at all the design on the top and the bottom above the outer shell on the back of the case is different it's a at secondary consideration so i'm absolutely not conceding that the hypothetical design is correct but even if it was there is a fact issue presented here just by the secondary considerations we showed  suggesting very clear and very tightly tailored so it's they're suggesting opposite ends of the spectrum there's also evidence of copying here we asked during this coverage how did you make the case and basically the owner of author who said well we sent a commonly known earner duty or obligation to a sign of the time of the of the time of the filing today is the st time we've ever heard that there was actually an assignment regarding the patent never brought up in the in the underlying case it's never right up in briefing in this case it was never brought up during  in this case it was never even emailed to us prior to today so a very basic application of rule thirty seven dollars and excluding evidence that was presented during discovery would absolutely keep the two in one patent as a  valid viable reference to the designs asserted in this case now the unique facts of this case separate from the typical obviousness analysis of the sort of design pattern in this case the two references applied in the analysis conception drawing combined the teachings of those and came up with this sort of designs in this case and whether we consider the two hundred and eighteen pattern of the two or nine patents a primary reference the other becoming the secondary reference resulting combination is the same relatively thin case it the idea that these are on opposite spectrums of of this design process of a relatively thin case versus a thicker more protective case is actually the motivation itself to combine  the conception drawings the only valid rough dealing reasonable assumption that can be drawn from those is that the inventor had these designs in mind and came up with a reasonable district court including so swapping the two references again it's really a former function issue here because the resulting combination is the same whether you call one the primary reference and the other in the secondary reference seems to me that if if that's the case very correctly when it may not be in all situations where you have art like this where all of the art is very in a related and in fact the facts of this case are some are somewhat unique in that the the two references are specifically rail related to the design process one is the inventors own prior reference or own partisan and the other specifically referred to in his conception drawing you don't usually have that usually you're drawing from prior art that he was certainly a person wary skill would be aware of this produced no actual evidence that the inventor himself or herself actually was aware of that reference and so you can't actually track the design process here we can specifically track the design process we can start with  again the overarching theme between these two references and the rd reference that's discussed in our summary judgment rate slim armor is that they were all related to the internet he actually either specifically referred to it as as the case a two piece case with a parting line of the top anyway at the bottom the only thing difference going difference there is a couple of minor differences in the buttons and the circular cut out on the bat and these these differences are not major differences most of them are actually dictated by the function of the underlying foam every time every year that phone companies come up with new phones screens get bigger the metals around the screen get in or the phones get thinner and so you have to make modifications to these cases so that accommodate these new phones including last cross appeal speaker misconstrues argument and all the court abuse its discretion below we do not content of the district court was required to provide a lengthy detailed analysis of the many grounds for exceptionally have present however we do contend that it was an abuse of discretion for the district court to ignore those grounds we presented and instead present a discussion of different grounds essentially setting up a straw man argument leaving this court with no actual analysis of the arguments that we presented and thus nothing to defer to and then finally before i reserve my time as to the standard of proof requiring all to prove to prove any aspect of exceptionality beyond a preponderance considered the evidence that we presented he held a co hearing with our case and the case against i speaker that you just heard as a companion case he intermix the arguments between the two he actually at one point asked i speaker's counsel whether he was asking for fees from both cases and the indication was that he he wasn't reviewing the cases independently and then when the new orders came out the next day they were virtually identical now obviously the conduct of the case in the two cases  wished it out several of those things they said among other reasons he didn't know if you look at the you you talk a few orders you'll see that the district court doesn't have to review all the judges and have to reveal his or her opinion about every single that would occasionally that we sought to stipulate out issues for example and he found that wording fees would have a different effect because unlike the cases that they cite there is no pattern here of you can try to seek nuisance value settlements so this is just not a case where the district judge they didn't explain what features of the two hundred and eighteen would be incorporated and they didn't explain any motivation or reason or cite any evidence to show why even if you did combine the references that you would all women a certain features that were there in their base reference in their in their base prim appeal enough grounds for a review if there's not a record that can be looked at with regard to most of the grounds that we raise notably there's no discussion about the strength of the case one of the patents that was held in the only nineteen and has not been appealed here because frankly there's there's no dispute that that patent is as invalid we spawn in that way initially before we even answered in the in the underlying case we had a claim char screen on the front of the case otherwise it's essentially the same as as the other cases the accused product instead of having just screen as a screen with this big thick plastic frame around it that then interacts with the other portions of the case looking at it as a design and are just plainly dissimilar as to the preservation of the arguments issue the quote that council just read is from several pages makin the brief not if that's not cross apologized so again the district court didn't consider all of our arguments with regard to the exceptionality of the case notably fail to disk fail to consider the strength of the case at the time it was filed now the concern the strength of the case later on as the case progressed we had an r f a directed to speak in that said that the two parts of the accused product that if it was accused of infringing the utility pa i guess with that when you are done